Citizenship

Lord Lester of Herne Hill: asked Her Majesty's Government:
	Whether they will invite Ministers and their advisers and Members of both Houses of Parliament to answer the questions contained in the new citizenship test so as to evaluate whether the questions are well designed for testing the necessary attributes of British citizenship.

Lord Bassam of Brighton: My Lords, anyone who has a reasonable grasp of English and takes the trouble to study the handbook which goes with the test will have little trouble in passing it. Little would be gained by inviting people who have not studied the handbook to take the test, although I have no doubt that many, if not most, noble Lords would in any case pass first time.
	The Life in the UK test questions have been devised and evaluated by a panel of experts, including members of the Advisory Board on Naturalisation and Integration, and will be reviewed in the light of experience.

Lord Lester of Herne Hill: My Lords, I am grateful to the Minister for that Answer. Perhaps he would close his official brief and, having done so, as though applying for citizenship, tell the House whether women have the same pay as men and how many young people there are in the UK. What are the dates of the national holidays in the four countries of the UK? How many people say that they have a religion and attend religious services? Could he then explain to the House why those questions are relevant in deciding whether an applicant has sufficient knowledge about life in the United Kingdom?

Lord Bassam of Brighton: My Lords, I am happy to do that if the noble Lord will answer the following questions. What is the House of Lords and who are its Members? How can you visit Parliament? What are the minimum ages for buying alcohol and tobacco? What is proportional representation and, perhaps of particular interest to the noble Lord, where is it used? Those are the sorts of questions that emerge from understanding the coursework provided to those who are invited to study and pass the test. I see no difficulty in people being asked those questions—they seem perfectly reasonable to me.

Lord Lester of Herne Hill: My Lords, will the Minister therefore answer the questions that I put to him?

Lord Roberts of Conwy: My Lords, are the answers not available on the Internet?

Lord Bassam of Brighton: My Lords, I am sure that the noble Lord is exactly right about that, but they are also available in the handbook which people are invited to study.

Lord Stoddart of Swindon: My Lords, are not the answers in the brief? Why does the Minister not read it?

Lord Bassam of Brighton: My Lords, the answers are not in the brief, but the other questions to which I referred are.

Lord Dholakia: My Lords, my noble friend Lord Lester asked an important question about the relevance of these questions in relation to citizenship. We can always have a nice laugh about the questions, but does the Minister agree that the real test for people applying for citizenship is that they are taught how to be a good citizen; what they will contribute to the country; what they will take out and whether what they put into the country should be greater than what they take out? Those are the real issues. When will the Government address them?

Lord Bassam of Brighton: My Lords, we have addressed those issues. My recollection is that when we passed the Nationality, Immigration and Asylum Act 2002, which provided for the test to be conducted, the noble Lord and his colleagues on the Liberal Democrat Benches thought that it was an extremely good idea. I thought that they, like us, shared an understanding that engaging with people and enabling them to understand the fundamentals of what it means to be a British citizen were very important. We take those matters seriously, as, I am sure, does the noble Lord.

Sexual Health

Baroness Tonge: asked Her Majesty's Government:
	What their plans are for a public information campaign aimed at improving sexual health.

Lord Warner: My Lords, a new sexual health campaign focusing on younger men and women was announced in the Government's public health White Paper Choosing Health. The Department of Health will work with the agency approved, and with business, NHS and voluntary sector partners to deliver the campaign as part of the Government's drive to modernise and transform sexual health services in England. We expect to launch the campaign next spring. It will be a high profile media campaign, focusing on the risks of unprotected sex, and the benefits of using condoms to avoid the risk of sexually transmitted infections, including HIV, and unintended pregnancies.

Baroness Tonge: My Lords, I thank the Minister for his response. Why is it taking so long to get on with this campaign, when my colleagues have been warning of an explosion in sexually transmitted disease for several years now? In view of all this, when will the Minister's department insist that sex and relationship education should form a statutory part of the national curriculum?

Lord Warner: My Lords, on the first question, given the complexity of the subject, it is challenging to develop messages and communication methods that will resonate most effectively with our audience. The audience here is the 16 to 34 year-olds. We want to have a high-profile and hard-hitting approach, similar to the "Don't die of ignorance" campaigns in the late 1980s. That takes a bit of time. Sex education is, of course, a key part of the PSHE syllabus, and I am sure it will be taken forward in most places.

Lord Fowler: My Lords, I welcome what the Minister has said, although I think the noble Baroness, Lady Tonge, has a strong point. It has taken many years to get to this point. Is the Minister confident that the sexual health clinics are able to respond to any increase in demand which may result from a publicity campaign, given that there are currently severe waiting times and lists, in what used to be a free and immediate walk-in service?

Lord Warner: My Lords, we realise that there are staffing and access issues. That is why we have included sexual health in the local delivery plans for the first time, to help to ensure that sexual health is prioritised at the local level, with targets for GUM access by March 2006, a decrease in gonorrhoea rates and so forth. We are using the planning and performance management system of the NHS to deliver change in this area.

Baroness Massey of Darwen: My Lords, how effective have other public health campaigns been, and in what way?

Lord Warner: My Lords, I do not have an extensive brief on all the campaigns that we have run. We do evaluate these campaigns, however, and I shall be happy to write to the noble Baroness with that information.

Baroness Gardner of Parkes: My Lords, is it not a fact that there has been no explosion of disease comparable to that in sexually transmitted diseases, and that this matter has often been discussed is this House? Does the Minister agree that young people want walk-in clinics? They do not want to be given an appointment. The last time we discussed this, the wait was six weeks. What is the present position? How many walk-in clinics are available and, if there is no walk-in clinic within reach, what is the waiting time?

Lord Warner: My Lords, the GUM clinics have access on that basis. We know that getting appointments in them can take longer than we would like in some places. The situation is improving, however.

Baroness Neuberger: My Lords, earlier this year, some area child protection committees attempted to issue protocols, which the Government are now considering, that young people under 18 should have their health advice to some extent discussed with other professionals, and enquiries made to the police. Can the Minister assure us that true confidentiality will be maintained in matters of sexual health and young people?

Lord Warner: Yes, my Lords.

Lord Roberts of Llandudno: My Lords, as health and education are devolved matters for the Scottish Parliament and the Welsh Assembly, will the Minister assure us that a dialogue takes place and that information is shared, and that the campaign will be not only in England, but throughout the United Kingdom?

Lord Warner: My Lords, we maintain good contact in all matters to do with health with our colleagues in Wales and Scotland, but these are matters for them to decide, as I think the noble Lord knows.

Lord Howarth of Newport: My Lords, is it still the case that parents have a right to opt their children out of sex education classes? Does the Minister think, in this age of HIV/AIDS and a worrying growth in sexually transmitted diseases, that it is appropriate in the wider interests that they should be able to do so? He will please me if he tells me that my apprehension is wrong and that they no longer have that right.

Lord Warner: My Lords, I was under the impression that the noble Lord's impression was wrong, but I will confirm it and write to him.

Lord Campbell of Alloway: My Lords, what is the average waiting time at a walk-in clinic?

Lord Warner: My Lords, by definition, you do not have a waiting time for a walk-in clinic.

Deepcut Army Barracks

Lord Lyell: asked Her Majesty's Government:
	Whether they will reconsider the procedure for investigating the allegations concerning the events at Deepcut army barracks

Lord Drayson: My Lords, there are no plans to reconsider procedures for investigating allegations concerning events at Deepcut. In addition to the investigation by the Surrey Police and work by the Army, the Adult Learning Inspectorate and the Select Committee on Defence have each reported on initial training, care and welfare. Moreover, recognising the degree of public concern, the Armed Forces Minister asked Nicholas Blake QC independently to review the circumstances surrounding the four deaths. Mr Blake has made substantial progress with his wide-ranging review and will report shortly.

Lord Lyell: My Lords, I am grateful to the Minister for that reply. Are there any further lessons to be learned by his department from this affair, such as the slightly earlier involvement of the civil police in such cases? It has been 10 years since the first case arose at Deepcut and inquiries by the Army are still continuing. The Minister did not refer to the fact that only three out of 100 pages of the report of the inquiry by the Devon and Cornwall police into the inquiry by the Surrey police have been published. Will further information be made available from that?

Lord Drayson: Yes, my Lords, we recognise that there are further lessons to learn. The noble Lord is correct that the Devon and Cornwall police are currently reviewing the investigation which was undertaken by the Surrey police and the results will be presented to the Surrey police. It will then be a matter for them whether the results of that review will be published.

Lord Laming: My Lords, does the Minister agree that the military services have an enviable record in changing raw recruits into a fighting military unit? They did it with me, so that is a wonderful testimony to their achievements. But the very fact that the Ministry of Defence has set up so many private inquiries increases people's concern. Has not the time now come for the Government to establish an independent inquiry, held in public, so that people can get to the truth of what happened to those young people?

Lord Drayson: My Lords, I thank the noble Lord for recognising the tremendous work that is done by the training establishments within our Armed Forces, which is reflected in their very high performance. We recognise, however, that, in common with all parts of society, the Armed Forces have a problem with bullying. We cannot be complacent about that. We have made significant progress on this matter. Bearing in mind that the Blake review is expected to report shortly, it would be wrong to prejudge it by making any statements on whether we would favour a public inquiry or any other inquiry. Let us see the results of the Blake review.

Lord Astor of Hever: My Lords, we welcome the steps that the Army has taken recently to look after its recruits. While we do not condone bullying of any kind, does the Minister agree that the Army is training young men and women for the battlefield and that robust but professional training is essential?

Lord Drayson: Yes, my Lords, the Army is training troops for the battlefield. That training must be fully robust to prepare people for the challenges that they will encounter, but that must be done with full consideration for the rights of the individual.

Lord Garden: My Lords, your Lordships discussed a similar Question to this on 9 December 2004. At that time, I raised with the Minister the then Adjutant-General's concerns, in the light of Deepcut, about the lack of resources available to provide adequate supervision at Army training establishments. What has been done in the past 12 months to rectify those staffing levels, and has similar action also been extended to other service units, including the Royal Marines?

Lord Drayson: My Lords, a considerable amount has been done in response to the recommendations that have come out of these reviews. We have improved the supervisory ratios of trainers within the training establishments, and we have implemented a course to improve the training of trainers—and that is being rolled out throughout the Army establishment. I do not know whether that process has included the Royal Marines, but I shall write to the noble Lord on that matter.

Lord Thomas of Gresford: My Lords, are initiation ceremonies regarded as a disciplinary offence and, if not, why not?

Lord Drayson: My Lords, initiation ceremonies are regarded as a disciplinary offence.

Lord Foulkes of Cumnock: My Lords, would the Minister agree that we are talking here not about bullying, but about allegations of what appears to be institutionalised violence and victimisation? Would the Minister, along with his honourable and right honourable colleagues, give further serious consideration to that matter, and to the request from the noble Lord opposite? It is a matter of very serious concern to many Members on all sides of the House.

Lord Drayson: My Lords, I share the concerns expressed by my noble friend. We are not complacent on this matter. We recognise that, in common with wider society, issues of bullying are matters of deep concern to the Armed Forces. That is something that we are actively working very hard on. Issues such as that which appeared at the weekend are of deep concern to us; we take any allegations extremely seriously and have a zero tolerance policy on bullying. It is clear that there is a need for continual vigilance on the matter of harassment and bullying in the Armed Forces, particularly in training camps. That is something that we are actively working on, and we look forward to seeing the results of the Blake review, which will highlight any potential further work that we need to do.

The Earl of Listowel: My Lords, is the Minister concerned that current demands on the Armed Forces are perhaps preventing senior officers from giving their full attention to those working at the first line with recruits and younger Armed Forces personnel, and that that might be a contributory factor to the loss of discipline in this case?

Lord Drayson: No, my Lords, I do not believe that to be the case because it has not been raised in any of the reviews that have been highlighted. The Armed Forces take extremely seriously the quality of leadership in our training establishments; after all, it is fundamental to the capability and performance of our Armed Forces. We do not believe that any trade-off can be contemplated in terms of the demand in operations. This is about making sure that we have rigorous resources, training and procedures in place to minimise any bullying that may take place.

Lord Roberts of Conwy: My Lords, are the Government taking active steps to ensure that we are in full possession of all the facts behind and around the initiation ceremony and the film thereof?

Lord Drayson: Yes, my Lords, an investigation has been launched by the Special Investigation Branch of the Royal Military Police. I cannot make any further comments about that as it is an ongoing investigation. However, I stress again that any allegations are taken very seriously and will be thoroughly investigated.

Navigation Aids: Irish Territorial Waters

Lord Berkeley: asked Her Majesty's Government:
	Why light dues paid by ships using United Kingdom ports are used to fund the new head office of the Commissioners of Irish Lights in Dun Laoghaire in the Republic of Ireland.

Baroness Crawley: My Lords, under the Merchant Shipping Act 1995 the UK Government have a statutory responsibility to fund the Commissioners of Irish Lights, the CIL, from light duties paid by shipping at UK and Irish ports. The CIL's single new base is needed to ensure that it can play its part even more effectively in the integrated aids to navigation service for the British Isles. As with all the CIL's spend, the Irish Government will meet 35 per cent of the cost of the project.

Lord Berkeley: My Lords, I am grateful to my noble friend for that Answer. It is good to know that the Irish Government are paying some of the costs of maintaining lighthouses in Ireland and giving their commissioner a new head office. I asked a similar question a year ago, on 30 November, and my noble friend Lord Triesman said:
	"We are working with the Irish Government to address more fully that shortfall and are pressing for formal negotiations to commence in the new year".—[Official Report, 30/11/04; col. 379.]
	The new year has nearly finished. What progress has been made? What will my noble friend do to ensure that the Irish Government take a bit more action? After 80 years of getting something for free, surely they will not be keen to start paying for it?

Baroness Crawley: My Lords, as with much of our relationship with our Irish neighbours, nothing is quite as simple as it first seems. Often this goes back several decades. However, my noble friend will know that we have had hard-nosed negotiations with our Irish colleagues on this matter, and in March we secured a commitment from the Irish Government to renegotiate the 1985 agreement that sets out these arrangements. My noble friend will also know that we have a statutory obligation in this matter regarding the lights that the British Isles is responsible for around the coastline.

Lord Glentoran: My Lords, does the Minister agree with me that any careful examination of accounts will show that the Commissioners of Irish Lights are the most efficient of the lighthouse services serving the United Kingdom and Europe? Does she agree that this project, which will show a payback in less than four years, is extremely well thought through and economically put together and will save the lighthouse service considerable sums in future years?

Baroness Crawley: My Lords, I agree with the noble Lord, Lord Glentoran. He has great expertise in this matter. The co-location of this modern building with high-tech systems in place will bring major efficiency gains to the CIL's operation, and will streamline the organisation, resulting, as he says, in an annual cost saving of £1.4 million.

Lord Glentoran: My apologies, my Lords, but I failed to declare an interest. I am in fact a commissioner for the Irish Lighthouse Service, and have been for 15 years plus.

European Union (Accessions) Bill

Brought from the Commons; read a first time, and ordered to be printed.

Commons Bill [HL]

Report received.

Lord Livsey of Talgarth: moved Amendment No. 1:
	After Clause 4, insert the following new clause—
	"COMMONS INSPECTORS
	(1) There shall be a body of adjudicators known as "Commons Inspectors".
	(2) The Secretary of State shall appoint—
	(a) persons who have a 7 year legal qualification within the meaning of section 71 of the Courts and Legal Services Act (c. 41); and
	(b) persons with such other expertise as he considers to be appropriate;
	to be Commons Inspectors.
	(3) The Commons Inspectors shall undertake the functions of the Commons Commissioners established under the Commons Registration Act 1965 (c. 64).
	(4) The Secretary of State shall confer such other functions upon the Commons Inspectors as he considers appropriate.
	(5) The Secretary of State shall pay to the Commons Inspectors such fees, travelling allowances and other allowances as he may determine."

Lord Livsey of Talgarth: My Lords, Amendment No. 1 proposes a new clause after Clause 4. I headed it "Commons Adjudication", but it appears on the Marshalled List as "Commons Inspectors". I would prefer it to say the former, but there we are.
	In proposing this amendment, we know it has some similarities to the amendment I proposed in Committee, which was to retain the commons commissioners introduced under the Commons Registration Act 1965. The Minister's response was that the commons commissioners had fulfilled their tasks under that Act, which were to determine the first wave of disputed provisional registrations under the 1965 Act and to inquire into the ownership of unclaimed common land. We believe that there are still issues to be resolved from time to time, some of which have legal implications and others of which do not. We agree that the previous system was a little inflexible and that it is not necessary for all adjudicators to have legal qualifications or that they should occupy such a position for life. However, our amendment to create commons inspectors takes account of many of the reservations expressed by the Minister in Committee. There would be lay as well as legal inspectors and the amendment is flexible enough to provide a majority of lay inspectors with the necessary specialised expertise. The amendment would provide a framework for adjudication of disputes and disagreements to be resolved by an independent body. Commoners would have confidence in such a body which would have time-limited membership.
	We acknowledge that a great deal of the original work of the commissioners originated with disputed provisional registrations after the 1965 Act, and is now complete. However, we still need an independent body to arbitrate on disputes regarding common rights and, indeed, in some cases the legality or otherwise of activities associated with common land. There is genuine anxiety among commoners and commons registration authorities at the disappearance of the commons commissioners, and that there is no adequate replacement body. While we agree with the Minister that inspectors should be appointed by the Secretary of State in England and the Minister in the Welsh Assembly government in Wales, the idea of a panel of inspectors seems ad hoc without a clause in the Bill, and ultimately in the Act, which provides a framework for the inspectors to operate independently as adjudicators.
	I suspect that the reluctance shown in Committee may have quite a lot to do with cost. Lawyers cost money and there is a drive to cut costs in Defra, but in doing so there is a danger of throwing the baby out with the bath water. The function of adjudication is important and remains an issue. The alternative could well be the county court or even the High Court. Commoners are not wealthy people and may not be able to afford such a recourse. It is far better to have these matters resolved by people with the necessary expertise at as local a level as possible without turning to the courts.
	Finally, our amendment is flexible. Subsection (2) of the proposed new clause does not envisage inspectors with retainers or a preponderance of lawyers. Subsection (2)(b) ensures that persons with other expertise can be appointed and could shoulder the majority of the work. There is no compunction either that they should be permanent staff, merely that they should be available at times of need. There is though a necessity to have a few secretarial staff to keep the body on the road. The commons registration authorities will manage day-to-day matters but it is vital that there is an independent contact point to resolve matters of genuine concern. This kind of arrangement is not likely to bear down heavily on the public purse, but it will perform a very necessary reference and action point for commoners, village greens and commons associations, all of which will be able to communicate with and have confidence in a body which is there to help. I hope that the Minister will accept the amendment which is tabled in good faith.
	Schedule 1 contains a number of references to the activities of commons commissioners which show that they perform a very valuable service in resolving problems regarding the commons of England and Wales. This is a necessary matter in which commons, commons associations and others who deal with commons should have confidence in the future. I beg to move.

Baroness Byford: My Lords, I thank the noble Lord, Lord Livsey, for moving the amendment. We had a good debate about the matter in Committee. I hope that the Government will consider the amendment sincerely, because the noble Lord has taken on board the question previously raised about legal costs and whether someone sorting out a dispute between commoners needs to be legally qualified. The noble Lord also mentioned subsection (2)(b) of his proposed new clause. That partly helps to resolve some of the comments made at the time.
	While we hope that there will not be too many cases where the commissioners will be needed, in reality they have been needed over the years. The Bill as it stands is the poorer without the amendment and I hope that the Minister will consider it favourably. If the Minister does not particularly like the precise wording, I do not suppose that the noble Lord, Lord Livsey, is tied to it. It is the thrust behind it which he seeks to promote. We on these Benches are certainly grateful to him for having included subsection (2)(b), which was, for some, a slight stumbling block in Committee.

Lord Bach: My Lords, before I respond to the amendment of the noble Lord, Lord Livsey, I point out that the Government's view is that the Bill has already been much improved in Committee and in the short while between Committee and Report from how it was when it began in your Lordships' House. I am extremely grateful to noble Lords from all sides of your Lordships' House for their part in improving the Bill. I hope they acknowledge, in turn, that the Government have made some concessions on the Bill, which are clear from government amendments before the House today. Noble Lords should, I hope, feel that we have done what we said we would at Second Reading; that is, to listen to what noble Lords say—we are still in that listening process. After the experience of 40 years ago, it is more important to get the Bill right than to insist on our position in every situation, come what may.
	Amendment No. 1 brings us back to some familiar friends, the commons commissioners. Under the Commons Registration Act 1965, the amendment would vest the functions of the commissioners in a new body of adjudicators to be known as the commons inspectors. Part 1 of the Bill envisages the commons registration authority having the lead role in dealing with applications for amendment of the register. That is the same approach as that under the 1965 Act, which required registration authorities to deal with all applications for provisional registration.
	Regulations made under Clause 24 are likely to provide for such applications to be dealt with in one of several ways. We envisage that straightforward applications—for example, to register the variation of a right of common—will be determined by the authority. Similarly, we would expect the authority to deal with most applications for correction of the register.
	We envisage, however, that some applications will raise particularly difficult questions; either of fact or of law—or, perhaps, of both. That is particularly likely in the case of applications under Schedule 1 for deregistration of wrongly registered land or registration of waste land of the manor, which may require the tribunal to examine historical evidence, take evidence from witnesses and interpret matters of common law. The noble Lord, Lord Livsey, mentioned that schedule.
	Other applications may pose difficulties for the registration authority through conflict of interest. For example, an application under Clause 19 for correcting an error in the register may relate to land belonging to the authority itself. In these cases, regulations enable us to provide for the appointment of an independent person to do one of two things: to inquire impartially into the matter and to report back to the authority, which would make the final decision having regard to that report; or to inquire into the matter, and for the appointed person herself to determine the matter on the evidence before her.
	This is not a question of big government taking the matter out of local authorities' hands. It is not necessary that regulations provide for a prescriptive approach to these things. For example, they may provide for an authority to refer an application for the registration of a green to an independent person on its own initiative. Some local authorities have told us that such applications are very controversial, raise complex questions of both fact and law and are not matters that can satisfactorily be dealt with by council members. We envisage that regulations would enable the decision to be taken instead by the appointed person at their discretion. Similarly, if the authority was aware of a conflict of interest, it would be expected to refer the matter elsewhere for decision—that would be proper.
	We are already committed to consulting on the form of such regulations, and that will be the opportunity for registration authorities to talk to us about how these things should be handled. Noble Lords may remember that my honourable friend, Jim Knight MP, the Minister for Rural Affairs, in September announced our plans for assisting with financial and practical support for the establishment of an association of commons registration officers. We expect a strong, focal role in consultation for the proposed association. It is a little early for me to say exactly what the panel of independent persons will look like. I think it very likely that, as the noble Lord, Lord Livsey, envisages in Amendment No. 1, some panel members will have legal qualifications and others will not. Sometimes experience and awareness in matters of common land can count for as much as legal qualifications.
	It is clear to us that we will need to establish a panel, so the noble Lord is pushing at an open door. We cannot hope to have applications dealt with on an ad hoc basis by inspectors who come and go, but we do not need special powers to deal with this. We have a panel of inspectors determining public path orders, but they manage very well without an official title. As this House will know, a panel of inspectors deals with access appeals under Part 1 of CROW, but the powers in CROW are not dissimilar to those available to us under Clause 24—there is no "access inspectorate". We expect there to be a role for our panel of independent persons in taking forward work on other parts of the Bill. We are already committed to holding an inquiry into proposals for commons associations under Part 2 where a proposal is controversial or contested, and some applications for consent under Clause 38 will be referred to a hearing or inquiry.
	I know that there is great respect for the work of the commons commissioners—they are acknowledged to be fair, well informed and independent. We will seek to emulate those qualities in those who fulfil a similar role. Noble Lords will know that this Bill repeals the 1965 Act, and I am on familiar ground when I say that it is time to move on. Perhaps that has been said too much, but I emphasise that this Bill is about setting the scene for the next 40 years. The implementation of the Bill will be an exciting time for those with an interest in our common land, and there will be opportunities to create a panel of independent persons which meets the needs of the present and future rather than the past. That is absolutely in line with what the noble Lord, Lord Livsey, has asked for. We do not feel that we have to put it in the Bill in this way. I ask the noble Lord to have confidence in our plans and so to withdraw his amendment.

Baroness Byford: My Lords, I think that I heard the noble Lord correctly when he said that the new directions are going to come through in regulations and that at the moment the Government are consulting on that. Will the Minister clarify how long the consultation will be and when it is likely to end?

Lord Bach: My Lords, as I understand it, we will be consulting on this issue when the Bill becomes an Act of Parliament. Then the consultations will begin, although I am sure that conversations and discussions on the subject are taking place now. I think that formal consultations best take place after a Bill becomes an Act. I am afraid, therefore, that I cannot give her a date, but the consultations will be a priority.

Lord Jopling: My Lords, I am afraid to say that a shudder went through my mind when I heard the noble Lord, Lord Bach, use the words, "no need to put this on the face of the Bill". I think I said in Committee that I was heavily involved in the first Commons Registration Act 1965 when that went through another place. I remember vividly Mr John Mackie—the brother of our noble friend Lord Mackie of Benshie—who was then a junior Minister at Agriculture, endlessly tell us that there was no need to put various things on the face of the Bill. I especially remember a classic example when we suggested to him that in the Bill there ought to be a way of dealing with people who have common rights—to use the ancient French—san nombre. This meant they had unlimited rights to graze a fell, It was perfectly possible given those rights to put down an extremely extravagant figure. That is exactly what has happened in the mean time, which has caused so many of the difficulties creating the need for this Bill. At that time John Mackie said there was no need to put it in the Bill. As I raised in Committee, we had exactly the same concern over this issue of defining what common rights one had—whether it was grazing or pannage or some of the items on the long list. We were told again there was no need to put it on the face of the Bill. The experience since then has been that it ought to have been on the face of the Bill. Will the Minister, between now and Third Reading, think again about what the noble Lord, Lord Livsey, has said—

The Countess of Mar: My Lords, I am sorry to interrupt the noble Lord, but this is Report and before he sits down, I would like to ask him to elucidate briefly on the matter that he has spoken to.

Lord Jopling: My Lords, I apologise. As I have felt so cross about what has happened since 1965, I was perhaps rather long-winded. Will the noble Lord think about it again and whether it is necessary to put it on the face of the Bill?

Lord Bach: My Lords, the noble Lord has had a long time to get cross, 40 years on. Of course we will think about it again, but I cannot promise there will be a different answer.

Lord Livsey of Talgarth: My Lords, I thank the noble Baroness, Lady Byford, very much for her support, and the noble Lord, Lord Jopling, who has a great deal of experience in this field. I was going to challenge the Minister on why this could not go on the face of the Bill. I accept in large part what he has said as reassurance about the activities of the inspectors and the fact that there will also be an independent panel operating—all of the things desired by those connected with commons. None the less, there are considerable variables in the administration of commons registration authorities. It is not surprising that in some urban areas there are many other problems for local authorities to deal with—commons are a marginal consideration. I bring to the Minister's attention the fact that the response of commons registration authorities is not likely to be an even process. Some authorities are extremely well versed and up to speed with their records and registrations. Others, unfortunately, are not quite in that situation. I hear what the Minister says—that this is likely to appear in regulations.
	Like the noble Lord, Lord Jopling, I ask the Minister to think again about the matter. Everyone wants a body in which they have a great deal of confidence that it will come up with the right answers in the extremely difficult situations likely to appear in future. I will note what the Minister has said for the time being.

Lord Williams of Elvel: My Lords, will the noble Lord reflect on the procedures on Report? My noble friend said that he will reconsider the issue. We have had plenty of time. The normal procedure of the House is that decisions should be made on Report rather than at Third Reading. I hope that my noble friend might reconsider what he said and, if the noble Lord wishes to put the matter to the House, the House will of course have to arrive at a conclusion.

Lord Livsey of Talgarth: My Lords, I note what the noble Lord says, but I do not think that it does any harm to re-emphasise the points made. We still have an opportunity at Third Reading. I know that it is not normal practice to table a lot of amendments for Third Reading; none the less, that opportunity is there. We have had a useful debate in the mean time. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 6 [Creation]:

Baroness Farrington of Ribbleton: moved Amendment No. 2:
	Page 3, line 13, at end insert—
	"( ) A right of common cannot at any time after the commencement of this section be created over land to which this Part applies by virtue of prescription."

Baroness Farrington of Ribbleton: My Lords, I thank all noble Lords who are helping me with the job of being the Whip today.
	In moving government Amendment No. 2, I shall speak also to government Amendment No. 3. They put beyond doubt the intended effect of Clause 6(1)—that a right of common can no longer be acquired by prescription. Clause 6 provides that, in future, a right of common is to be created over land only by means of an express grant or pursuant to an enactment. There are some grounds to believe that a claim to have acquired a right of common by prescription may nevertheless be successful. That is because such a claim would be made under the Prescription Act 1832, and hence "pursuant to an enactment".
	The amendments therefore explicitly provide that a right of common cannot come into being by prescription. For the avoidance of any doubt, I should add that the prohibition on prescription includes, in addition to the Prescription Act, prescription under the common law and by lost modern grant. I beg to move.

On Question, amendment agreed to.

Baroness Farrington of Ribbleton: moved Amendment No. 3:
	Page 3, line 15, leave out "or come into being" and insert "in any other way"
	On Question, amendment agreed to.
	Clause 9 [Severance]:

Lord Livsey of Talgarth: moved Amendment No. 4:
	Page 5, line 13, leave out paragraphs (a) and (b).

Lord Livsey of Talgarth: My Lords, severance affects rights of common and is registered in the register of common land. The context of the amendment is that rights of common can be severed permanently and, as the Bill states, transferred to Natural England, the Countryside Council for Wales or any commons association. The amendment would take out Natural England and the Countryside Council for Wales. The reason for that is that public money could be used to purchase the grazing rights under paragraphs (a) and (b). Indeed, the commons association may be financially unable to compete in that situation, even though land to be severed is a crucial part of the grazing viability of the common. It could be an awkward situation.
	If land is to be severed permanently, it should be transferred to either a voluntary or statutory commons association to maintain the viability of the commons and commoners, who in any case will be managing the land—no doubt with environmental and conservation considerations—by the two bodies mentioned in paragraphs (a) and (b). I beg to move.

Lord Brabazon of Tara: My Lords, I should point out that if this amendment is agreed to, I shall not be able to call Amendment No. 7.

Earl Peel: My Lords, I see that my Amendment No. 8 has been grouped with this one, so perhaps I may speak to it now. I am extremely grateful to the noble Lord, Lord Greaves, for having put his name to my amendment. Despite some of the rather sarcastic comments made earlier, the noble Lord and I seem to agree on rather more issues than we thought we might have done at the commencement of the Bill, which is extremely pleasant.
	I declare an interest as an owner of common land. As the noble Lord, Lord Livsey, has just pointed out, the Bill as drafted would allow an exception for severed rights of common to be transferred to Natural England. Much concern was expressed from all sides of the House about that proposal. Given that Natural England already has the powers to enter into management agreements with commoners, I think it is fair to say that it was generally agreed that ownership of rights by a statutory agency would be inappropriate.
	The government amendment would require the consent of any statutory commons association or consultation with the owner if such a severance were likely to take place. It is not clear why a commons association would be able to give its consent and yet the owner would only be consulted, and perhaps the Minister will explain that when he speaks to these amendments. In order to avoid the prospect of Natural England vying with an owner to acquire such rights, it seems to me that it would be preferable for the owner to be given an opportunity to do so, particularly as—in most cases, I suspect—his intentions would be the same as those of Natural England.
	The Minister made it clear in his Explanatory Notes that the objective of consultation was to enable the owner to negotiate to acquire such rights. But, returning to the point made by my noble friend Lord Jopling, nothing in the Bill clarifies the position or confirms what I suspect the Minister laid out in his letter. I should be very interested to hear what the Minister has to say about this. I think that the intentions are there but it is not clear on the face of the Bill.

The Earl of Caithness: My Lords, perhaps I may seek clarification at this stage. My noble friend Lord Peel has just spoken to his amendment, which is an amendment to an amendment that has not yet been moved. As we are at Report stage and can speak only once, I should be grateful for some clarification as I want to speak to the government amendments as well as others.

Lord Bach: My Lords, I am grateful as that situation will arise with one or two other groups with which we will be dealing today. So, with the leave of the House, I shall speak now to my amendments and, in doing so, shall deal as best as I can with Amendment No. 4, which has already been moved, and perhaps I can come back to the noble Earl's amendment.
	I shall say what I can about Amendments Nos. 5 and 7—the two government amendments in this group. They deal with the powers in Clause 9 for certain bodies to acquire rights of common by severance. They do two things. First, Amendment No. 5, which is more technical than anything else, clarifies that a statutory commons association may acquire rights of common through severance only if those rights are exercisable over land in respect of which the association is designated; in other words, an association will not be able to acquire rights in this way over any other common for which it has no powers of management. That seems to be common sense and is a sensible matter to put beyond doubt.
	Amendment No. 7 responds to widespread concerns expressed by Members of the Committee about the powers of Natural England and the Countryside Council for Wales to acquire rights by severance. I shall say more about that in a moment. The government amendments will give a statutory commons association the power of veto over any proposed acquisition, and will require at least two months' notice of the acquisition to be given to the common owner and any voluntary commoners' association. Later I shall do my best to answer the question posed by the noble Earl, Lord Peel. That will enable consultation between the countryside body and the commoners' association, and provide an opportunity for the common owner to acquire the rights instead.
	It may help if I explain why we think the powers in subsection (3) are necessary. That will respond to the concerns raised by Amendment No. 4 tabled by the noble Lord, Lord Livsey. The House knows that we have set ourselves a target of ensuring that 95 per cent of all sites of special scientific interest are put in favourable condition by 2010. About one-fifth of SSSIs are on common land, and many of those are upland moorlands subject to multiple grazing rights. Yet those are just the sort of habitats on which the target condition remains elusive. For example, there are around 40,000 hectares of upland dwarf shrub heath which remain in unfavourable condition, and in the overwhelming majority of cases the primary cause is over-grazing.
	Of course, the world is changing and it is right that the decoupling of agricultural subsidies is relieving our upland commons of the burden of over-grazing. We need to plan for under-grazing, not over-grazing. That point was made in Committee. But the fact remains that many upland commons remain subject to levels of stocking that are incompatible with our nature conservation objectives. We cannot afford to proceed on the assumption that all will be well if we simply wait for commoners to respond to market signals.
	The powers in subsection (3)(a) and (b) are there because they can make a significant contribution to the reduction of over-grazing on common land. They enable Natural England and, in Wales, the Countryside Council to acquire rights by severance, and to hold those rights in abeyance. To put it beyond doubt, neither body has any intention of exercising the rights it acquires; the purpose of retaining the rights is to prevent the exercise of those rights by anyone else, or by the owner. Under Clause 10, Natural England and the council will, in future, have powers to reattach the severed rights to a holding which is held in sympathetic hands.
	There has been some comment about the way in which English Nature has exercised its present discretion to acquire rights by severance, and the impact that that has had on some commoning communities. English Nature acquires rights from willing sellers. We must not lose sight of that. If a commoner does not wish to sell his rights, he need not. I have heard reference made to commoners losing their livelihoods: if they do so, then it is of their own volition, and they are well rewarded for it. It is not for the House to tell farmers that they must continue commoning for the greater good.
	We recognise that a cessation of grazing by one or more commoners can disrupt existing hefting practices, which is why the Government have tabled amendments which would effect better consultation before these powers are exercised in future.
	I have spoken to the government amendments and in doing so I have attempted to answer the noble Lord, Lord Livsey. The noble Earl, Lord Peel, asked about the difference between the position of the commoner and the owner in relation to our amendments. The common owner can acquire rights of common in the same way as Natural England, voluntarily, where the holder of the right is willing to sell. The only difference is that if Natural England acquires rights, the rights will be held in abeyance, whereas if the owner acquires the rights, those rights will then become extinguished. I am not certain whether that has answered the noble Earl's point. Later I shall do my best to answer the real point he made.

Lord Greaves: My Lords, I have an amendment in this group. Before I speak to it I should like to thank the Government. This is the first occasion this afternoon where they have responded clearly to the long and intricate discussions we had about many of these matters in Grand Committee and have come back with a different proposal from that which they put to the Committee. That is to be welcomed; it will be welcomed on every occasion on which it has happened. It certainly goes a long way towards meeting the concerns expressed in Grand Committee severance and the relationship between the commons association and Natural England or the Countryside Council for Wales.
	What concerned a lot of people was that one of the national quangos could buy severed rights over the head of the local commons association when the local commons association itself wishes to acquire those rights of common. The government amendment clearly sets out that that is no longer possible. Whether the local commons association can go on to acquire those rights will be a matter of further negotiation but the Government's amendments go a long way to meeting the problems that we raised in Committee.
	Some people would like it to be set out more clearly. The noble Lord, Lord Jopling, referred in Grand Committee to wanting the commons association to be first in the order of precedence and my noble friends have tabled a similar amendment, which they will speak to later. It will be interesting to compare the Government's approach with this different approach, but we are certainly a long way to where we want to be.
	I was going to put two amendments down to the Minister's amendment when I first read it. The first I did not put down because it was covered by the amendment tabled by the noble Earl, Lord Peel. As he said, I put my name to this amendment. We need to understand whether or not the owner of the common is able to acquire these rights. At the moment, despite what the Minister has said, I am not clear that the owner does have that right. This proposed legislation—in the Government's wording—refers only to Natural England, the Countryside Council for Wales or the commons association. That needs clarifying, as it is not clear to me why the owner of the common as opposed to the commons association should not be able to negotiate for these rights.
	Amendment No. 9 relates to the situation in which there is no commons association, which will clearly be the case for the vast majority of commons for the foreseeable future and perhaps for ever. The Government are saying that they will give notice of the proposal to,
	"such persons as they consider represent the interests of persons exercising rights of common over the land."
	In other words, the commoners themselves, who are exercising those rights, have the right to be consulted on whether these rights should be transferred to Natural England. That seems right. The Government do not say that anybody has to take any notice whatsoever of any representations that the commoners make, or indeed representations that the owners make. I therefore propose that Natural England and the Countryside Council for Wales, in exercising their powers as to whether to acquire, must have regard to any representations that they have received. That is entirely reasonable and should be in the Bill.
	People will say, "Why is it necessary? They can take notice of the representations and they can still put them in the bin." At least they will have read them first. The point is that if the actions of such bodies were to be challenged under judicial review for example, then they would have to show that they had given proper regard and they would have to have some reason for rejecting representations if that is what they had done.
	It is very important that in the due process of administrative decisions there is a proper line of decision-making showing that representations have been considered rather than their simply being put in the bin immediately, and that people can be told about them.
	This is a very reasonable proposal. I hope that the Government will consider something very similar to it.

Baroness Miller of Chilthorne Domer: My Lords, Amendment No. 10, which is tabled in my name and that of my noble friend Lord Livsey, is a softer option than Amendment No. 4. It merely requires that commons associations,
	"shall have the first option to purchase any such right".
	Although I am grateful to the Government for taking notice of what was said in Grand Committee and recognising by their amendment that this is a serious issue, of all the issues that came out when I consulted commoners on the Bill over the summer this was the one that they felt most strongly about.
	Without commons associations having the first option to purchase, even with a veto—I will come back to the effect of that veto—the Bill will still be seen as giving quangos the power to purchase because they have bigger purses than commons associations to begin with. Commons associations may have to spend time raising money from among their members and designing business plans on how they will make repayments from their agri-environment scheme money, for which they will have the right to apply. The Bill will be seen as taking rights away from local people and giving them to quangos. The Minister may say that that is not the intention but it is how it will be seen. Commons associations would be in a much stronger starting position if they had the first option to purchase any such rights, even if it takes them time to raise the money—it may well do. The Minister may wish to consider introducing a time limit, so that another 10 years of overgrazing does not take place. However, quangos will have bigger purses.
	My other fear is that simply going down the government route of giving commons associations a right of veto would create very negative feeling, because if Natural England suggested something that the commons associations were not happy with, their only course of action would be to veto it. Our approach would lay the ground for a more positive relationship. If the commons association said, "We had the first option but in the end we decided that we did not want the financial burden and it would be better for Natural England to buy it", that would achieve the same end as the veto would have done but in a far more positive way.
	I still feel, therefore, that Amendment No. 10 gets us much closer to a positive working relationship between commons associations and those quangos set up to advise on how commons should be managed. We have not yet discussed Natural England's purpose, so it is difficult to put the cart before the horse and discuss this issue. Nevertheless, I believe that its primary purpose is to advise on land management. As I understand it, if it is to purchase anything, it would be a purchase of rights. However, if land is ill managed in another respect, the Bill may set a precedent for Natural England buying rather than negotiating its way out of problems. That is why I am particularly keen on Amendment No. 10.

The Earl of Caithness: My Lords, I support the noble Lord, Lord Livsey, on Amendment No. 4. I made clear in Committee that I did not like the idea of Natural England or the Countryside Council for Wales being able to buy separate rights. The Minister has not convinced me that it is necessary. It distorts the balance between the countryside bodies and working farmers. It puts the countryside body in an invidiously strong position in giving them rights to buy. I know that they have a right to buy at the moment, but that is wrong and the opportunity should be taken to prevent them buying in future.
	The Minister said that the countryside bodies would not exercise their rights but would transfer them to a sympathetic holding if there was under-grazing. I cannot find anything in the Bill on that. Can the Minister elucidate what he meant and how it is going to work? It appears to be another provision by which the countryside body can chat up various farmers and decide who is the nicest, then transfer rights to him because there is under-grazing on a common. There are ingredients for trouble here. Will the Minister say where that provision is in the Bill and how it will work? Can he say whether any severed rights have been bought since 28 June, which, under Clause 9(13), is the effective date of this part of the Bill? If severed rights have been bought since that date, and we do not know what the wording is, it will be interesting to see what the legal position is.

Lord Jopling: My Lords, I spoke on this issue in Committee. Like my noble friend Lord Caithness, I have great sympathy with certain aspects of these amendments and I hope that the Government will think kindly about them. My noble friend remarked that he would much prefer these rights to be purchased by local people, by farmers who farm these areas, rather than by various public bodies. He mentioned various environmental bodies. I think particularly of the Lake District, which I represented for 33 years in another place. I would hate to see the National Trust purchasing grazing rights in the Lake District. The best part of 15 years ago, when the National Trust's holding in the Lake District National Park was approaching 25 per cent, I started saying that 25 per cent of a national park was enough for any body to control and that I hoped the National Trust would not go on building up its land holding and land rights in the Lake District. I am happy for another body to be set up to do similar things to those done by the National Trust, as long as it is a separate body. But for the National Trust to dominate and control more than 25 per cent of the land in the Lake District National Park would be undesirable. I would hate to support legislation that made it possible for the National Trust to do so. There is no doubt that the National Trust is empire-building, because it was extremely angry when I started saying that 25 per cent was enough for any one body. I have always had the impression that it is not interested in limiting its dominance to 25 per cent of the national park. Therefore, we ought to draw the line now, just in case other people get hold of bodies like the National Trust and encourage bigger landholding and rights over land. That is the main reason why I am in sympathy with these amendments.

Baroness Byford: This is an interesting group of amendments and, like my noble friend Lord Jopling, I have great sympathy with several of them. I particularly support the amendment tabled by my noble friend Lord Peel, because it is right that an owner should be given the chance to acquire such rights. I hope that the Government will be willing to put that on the face of the Bill, because currently it is not there. Another noble Lord has already picked up a point made earlier by the Minister about Natural England acquiring rights only as a last resort and that they will be placed in sympathetic hands. I was intrigued by the words "sympathetic hands". For how long will they be held and in whose sympathetic hands?
	As regards the responsibilities of the new bodies that will hold those rights, it should be remembered that, on the whole, English Nature has held those rights. I know that it is very anxious that that should continue. But in the new set up of Natural England under the Natural Environment and Rural Communities Bill its role will be slightly changed. It will not be a single non-departmental government body. It will have extra responsibilities to consider, so it will not be quite as clearly defined as before. I take the view that just because it had that right in the past, it does not mean that it is a good idea for the future. As the Minister has said, we are starting again from scratch, building and looking forward. The Minister is right that a willing seller is needed in order to get a willing buyer.
	Noble Lords have made further points about the cost of likely sale of land. The balance must surely be that, invariably, the person in the form of Natural England is likely to have a bigger purse than perhaps the individual who might want to take up the advantage. Is the Minister concerned about the slight imbalance that there could be between the two?
	My noble friend Lord Jopling referred to the National Trust. I am a member and I believe that it does a good job. On the Beatrix Potter farm—I think that it is Yewdale—

Lord Jopling: My Lords, it is High Yewdale.

Baroness Byford: My Lords, I am very grateful to my noble friend. I knew that I had not got it quite right. That is an interesting case whereby the National Trust has decided to break up a viable farm and pass it between three or four others. A lot of people feel very strongly about the break-up of that farm. If Natural England acquires those rights, could it do something that is outside the original remit of just buying those rights? This is an intriguing group of amendments. I look forward to what the Minister has to say.

Lord Bach: My Lords, I am grateful to all noble Lords who have taken part in this interesting debate. It should be acknowledged, as the noble Lord, Lord Greaves, was good enough to do, that the Government have moved quite a long way to try to meet the concerns expressed in Committee. I have spoken to those amendments, but I will come back to that in a moment. Various amendments have been spoken to. As regards Amendment No. 9, the noble Lord, Lord Greaves, asked us to impose an obligation on Natural England to have regard to representations received in response to a notice published under Amendment No. 7. That would not be much more than Natural England and the council would be obliged to do anyway, but I am happy to see and to consider whether we can make the requirement plain in the Bill and, if possible, make such an amendment at Third Reading. I cannot promise that, but we are sympathetic to the noble Lord's proposal under Amendment No. 9.
	The noble Lord, Lord Greaves, asked whether the owner of common land can acquire those rights too. The owner will remain able to buy rights of common, but the effect is to extinguish those rights rather than to sever them from the land in question. The status quo is maintained.
	Amendment No. 8, tabled by the noble Earl, Lord Peel, and the noble Lord, Lord Greaves, would require Natural England or the council, having given notice of its intention to acquire a right, to enable the owner of a common to negotiate to acquire the right instead. I think they understand that Natural England is not in a position to enable negotiations between the owner and the commoner. I hope they will also accept, however, that one of the purposes of our amendment is to provide a breathing space during which such negotiations can take place. But we cannot practicably provide for that in legislation.
	Perhaps I may have a second go at the earlier question of the noble Earl, Lord Peel. Only the commons association will be able to veto an acquisition by Natural England. For our part, we do not see any reason why the owner should be able to stop Natural England acquiring rights which will not be exercised. Why should the owner wish to stop that happening? That is the difference between the rights that we intend to give to a statutory commons association and the rights that an owner will have in any event, if he wants to buy.
	Amendment No. 10 was spoken to by the noble Baroness, Lady Miller of Chilthorne Domer. The amendment would give the first option to acquire severed rights of common to the association. The noble Baroness described it as a softer version of Amendment No. 4. Even though it may be softer, we still do not like it very much. As I have said, the purpose of those bodies acquiring rights by severance is to reduce grazing pressure on common land. The rights, once acquired, will be held in abeyance. A commons association could have no purpose in acquiring such rights other than to exercise them in some way, which we believe would be completely counterproductive to the use of public money in having acquired the rights in the first place. The powers available under Clause 9(3) are just one piece in the armoury available to Natural England. It will also be able to offer management agreements to commoners to induce reduced grazing levels and promote the formation of a statutory commons association.
	These alternative approaches rely on the co-operation of at least a majority of active commoners. Sometimes that co-operation is not, and will not be, forthcoming. The power to acquire rights by severance is a practical alternative tool in such a situation, as well as a useful supplement where management agreements are already in place. If we are prepared to relinquish those powers, then we must also be prepared to accept that there may be little or nothing that the Government can do to achieve sustainable grazing levels on commons where majority co-operation is lacking. I stress that that would be an unfortunate position in our view. There would be little or nothing the Government could do unless Natural England had the right to buy these rights. That is the fact of the matter. It is not a question of Natural England interfering in commoners' affairs or sacrificing farmers' livelihoods. It is about a power to reduce unsustainable grazing on a targeted basis—sometimes when every other attempt has failed.
	I hope that our amendments to this clause show that we are ready to listen to criticism. I have already signalled a willingness to go beyond that on Amendment No. 9. The noble Earl, Lord Caithness, asked whether the ban will affect rights that have already been severed. Severed rights—rights held in gross—will be unaffected. Clause 10 enables such rights to be voluntarily reattached to land at a later date. The noble Earl asked what I meant by saying that Natural England would transfer severed rights it has acquired to a "sympathetic" holding. He asked where this was in the Bill, knowing, I think, that those words are not in the Bill. I think that the noble Earl was getting at how it will work in practice.
	Clause 10 provides for severed rights held in gross to be attached to a new farm holding. Natural England could do that, where the holding was, for example, occupied by a wildlife trust, so that the rights acquired would be exercised responsibly. The term "over-grazing" is not used either. The phrase used is "management of agricultural activities". That term covers the over-grazing issue.
	I have done my best to respond to each of the amendments. I have spoken already to my amendments. I hope that the House will realise that the Government have moved a long way in response to proper points made in Committee and will not press the amendments today.

Lord Livsey of Talgarth: My Lords, I certainly agree with my noble friend Lord Greaves that the Government moved a considerable way in some respects, but this group of amendments is a mixed bag. Let us take, for example, what the Minister said about a statutory commons association and the power of veto. That is reassuring to some extent until one wonders what happens in the case of voluntary commons. They make up the greatest number of commons by far. I do not know of a statutory common in the whole of Wales, for example, although this power might encourage commons to become statutory. That may be an agenda. None the less, I and many other Members, I am sure, are concerned about the position of voluntary commons in this situation. We certainly take on board the delicate situation regarding SSSIs, but Natural England and the CCW taking land out of commission because of overstocking is a very contentious issue. Although I note that the Minister said that those bodies have no intention of acquiring the land for themselves, what about people's livelihoods in this situation? Many people with rights of common are small farmers who depend on the common to make a living. The reallocation of grazing rights to other commoners could be a recipe for huge disagreement and disgruntlement among the commoners, although I understand that sympathetic management may be what is required in those cases.
	We are in danger of causing depopulation or even conducting social engineering by environmental diktat. I am sure that that is not intended, but we are in danger of doing it. I am sure the Minister would agree that co-operation would be far better. When we talk about sustainable grazing, we need to think about sustainable people as well. In remote rural areas, they are often the only people to be found. We need to take their concerns on board.
	I note that the Government expressed a measure of agreement with the amendment of the noble Earl, Lord Peel. We certainly agree with it. I am very pleased that the Minister took note of the amendment of my noble friend Lord Greaves and said that he would respond positively to it. I thank him very much for that.
	I was disappointed by his reaction to Amendment No. 10 of my noble friend Lady Miller, which would give a commons association the first option to purchase the right of common. We feel strongly about this. I thank the noble Earl, Lord Caithness, the noble Lord, Lord Jopling, and the noble Baroness, Lady Byford, for their support on many of these matters.
	There is a variety of amendments in this group, some of which we welcome—and we certainly welcome the Minister's assurances on them—but others of which are contentious. I am sure that the Minister will realise that. But at this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bach: moved Amendment No. 5:
	Page 5, line 16, at end insert "established for the land"
	On Question, amendment agreed to.

Lord Inglewood: moved Amendment No. 6:
	Page 5, line 16, at end insert—
	"(d) any other person if—
	(i) the rights of common are registered in the register of common land or town or village greens as attached to land owned by the transferee,
	(ii) the rights of common attached to the land owned by the transferee are exercisable over the same land as the transferred rights, and
	(iii) the transferee makes an application under section 10(2) to attach the transfered rights to the land owned by the transferee;
	(e) any other person if—
	(i) part of the land to which rights of common registered in a register of common land or town or village greens are attached is transferred to another person,
	(ii) the transfer is on terms that the rights of common attached to the transferred land is severed from the transferred land and attached to the retained land, and
	(iii) the transferor makes an application under section 10(2) to attach the severed rights to the retained land.
	(3A) The provisions of paragraphs (d) and (e) of subsection (3) shall come into force in accordance with regulations which may be framed by reference to particular land or descriptions of land."

Lord Inglewood: My Lords, prefacing what will I hope be my brief remarks this afternoon, I reiterate the welcome that I gave the Bill at Second Reading. As a number of noble Lords have said, it is overdue, coming 40 years after the Commons Registration Act 1965, which in turn was probably a further 40 years overdue, after the Law of Property Act 1925. I thank the Government for the non-partisan and pragmatic approach that they have taken to how they have dealt with matters of concern to various Members of your Lordships' House during the passage of the Bill. In particular, I commend the sound policy that in the case of commons "one size fits all" is not the right approach.
	That there is considerable variety in the commons of England and Wales should come as no surprise. After all, they have very diverse histories and are very far apart from each other. I came down from Cumbria this morning, and when I am here, I am closer to Paris than to my home—so we are not surprised that things are different there. The commons themselves have different roles in their agricultural communities, and how they have been managed over the years varies very considerably owing to the variations in the manorial system—because historically much of the administration was carried out in the manorial courts.
	In the case of severance, with which Amendment No. 6 deals, that plurality is already recognised in statute. As for Dartmoor, permanent severance of common rights is forbidden—and no one has ever suggested that this legislation should change the provisions that apply there. On the other hand, the Greenham and Cookham Commons Act 2002, which came on to the statute book only three years ago, permits it subject to certain tight constraints.
	We have here a precedent for a plural approach to the question whether permanent severance of rights of common should be allowed. What I propose as suitable under some circumstances, but not necessarily all, is that permanent severance of rights of common from one piece of land should be permitted, provided that they are subsequently attached to another piece of land that itself has appurtenant to it rights on the same common. In proposing that, I am fully aware of the need to balance all the relevant and important legal interests that exist in such circumstances—and we must remember the rights and concerns of all the parties that may be affected. But it is worth recalling that many common rights that will be affected by the general ban on severance are in fact quantified appurtenant rights, which under the common law have in many cases for a century been capable of being severed. I understand that under the Commons Act 1876, large numbers of common rights sans nombre, subject to the provisions of statute, were converted into quantified rights—and under the common law it follows, as was made quite clear in Bettison v Langton, they could be severed.
	I am not for a minute suggesting that we should move back to a situation in which common rights can be simply indiscriminately severed from land. What I propose—and what the amendment intends—is to provide a framework in which it would be possible for the kind of thing that I described to take place if it was deemed appropriate to do so. I stress the words,
	"if it was deemed appropriate to do so",
	because that is the key to the argument that I am advancing.
	As I have already said, what is right in one place is not necessarily right elsewhere. We have already seen this principle accepted in the Dartmoor statute and the Greenham and Cookham Act. This general approach should cover England and Wales as a whole. The way commons operate varies considerably from place to place. I recall, earlier in the debate in your Lordships' House, the noble Lord, Lord Livsey, telling us that, when he first left Wales to work in the Pennines, he found that the arrangements for dealing with commons were somewhat unfamiliar to him, and were in fact materially different from what he had grown up with in his own country.
	The underlying point behind my amendment is simple, and one the Minister made in a remark earlier this afternoon; and that is, the Bill we are discussing is likely to set the framework for the administration of common land in Britain for the next 40 years. Not many of us will be here in 40 years' time, unlike my noble friend Lord Jopling, who remembers dealing with the 1965 Act. If I am right, and it would be desirable for severance to take place along the lines I have described—I am not necessarily asking your Lordships to agree with me, merely to accept there is a possibility that I might be right—I understand it would not be possible to do much about it under the provisions of the Bill as now drafted. That is precisely the problem that has arisen out of the 1965 Act, which ended up posing a series of questions—not necessarily questions anticipated at the time it was debated—that it has not subsequently been possible to address until now.
	If I am right, to have the kind of provisions that I am advancing on the statue book would be a good thing. If I am not—and my near family can confirm that happens from time to time—the Government simply need not bring in any regulations. Furthermore, given the plurality that exists across commons across England and Wales, it may be that in some places the kind of ideas I am advocating are suitable, and in others they may not be. My amendment enables variation across the face of the country.
	The precedent for this in the Bill is the provisions that relate to the leasing of common rights. Those provisions contain an enormous degree of flexibility—quite rightly, I believe, because we do not know precisely the requirements of commons in the years to come. It is right that the government of the day should have wide flexibility in this regard in order to be able to tailor the detail of what is decided in future by regulations to meet the precise requirements of the day.
	This proposal meets the criteria of good government. I have talked this through in general terms with one of the Clerks, and I am advised it should not pose any problems with the Delegated Powers Scrutiny Committee. I do not believe that the Government can lose by accepting my ideas. I beg to move.

Lord Jopling: My Lords, I want very strongly to support what my noble friend Lord Inglewood has said in moving this amendment. I was equally struck by a letter I have had from the Federation of Cumbria Commoners, who are people who are concerned with commons, many of which were in the constituency I had the honour to serve in the other place. They tell me:
	"The Federation (which represents over 500 commoners in Cumbria and Lancashire) is firmly of the view that an amendment such as this"—
	they are talking about my noble friend's amendment—
	"is essential if the almost universally desired aim of retaining the local link between rights and the management of a common is to be achieved".
	Where there appears to be very strong support for a change in the proposed legislation, on which my noble friend Lord Inglewood put his finger, we ought seriously to consider the point that he made.
	The Bill in its present form will result in an acceleration of the rate at which the number of rights that are available for use become eroded, leading eventually to a loss of the critical mass which is essential for a grazed common to function. I keep hearing the Minister talk about the problems of over-grazing. I should have thought that it was possible to deal quite simply with the problems of over-grazing. Years ago I instigated the less favoured area scheme which affects a great many commons, particularly in the Lake District. Virtually the whole of the Lake District National Park, which comprises a huge sea of common land, comes within the less favoured area scheme. I should have thought it would be perfectly possible to deal with over-grazing under a scheme such as the less favoured area scheme.
	The amendment that my noble friend moved constitutes a "fair and workable solution", in the words of the Cumbria Commoners. I hope that the Minister will give close and sympathetic attention to the amendment as I believe that it would do a good deal to stop a lot of common land in this country going to rack and ruin in the future. I shall not enter a discussion about the future economics of upland farming but the prospects are pretty dim. We need to ensure that commons are farmed as efficiently as possible without over-grazing but avoiding the other serious problem of under-grazing.
	Years ago I remember going to Northern Ireland and being shown land that was no longer farmed. There was, and still is, relatively little land in this country which is not looked after in one way or another. I hope that we shall not see the ravages of under-grazing, which this amendment would help us avoid, because nothing looks more awful than land which has gone out of use and is becoming an upland wilderness.

Earl Peel: My Lords, I believe my noble friend knows that I have great sympathy with the intentions behind his amendment. I certainly admire the way in which he has continued to try to find a solution to this matter. Judging from the reams of paperwork in front of him, I can see that he has done a great deal of work on the subject. I also appreciate the argument regarding the lack of viability of some small farms and the desirability of amalgamating certain hefts to achieve a more economically sized sheep flock. Those points make complete sense. I also appreciate my noble friend's point on restricted severance, in other words, severance to the particular common in question, and that new subsection (3A) of his amendment would go some way towards addressing the original difficulties that we discussed in Committee. However, I am bound to say that with the best will in the world I still cannot support the amendment as it stands. If the Government were to accept the amendment, they would, in effect, drive a coach and horses through a major part of the Bill; the inability to sever grazing rights from the in-bye land or dominant tenement.
	As I said in Committee, hefted flocks have existed for a long time, in both England and Wales, and are now an integral part of the management structure of common land. Customs vary, as the noble Lord rightly identified, but the principles remain the same. Where they have been disrupted in the past, either through the introduction of flying flocks from outside or through over-registration of sheep numbers under the Commons Registration Act 1965, it has clearly led to extreme examples of over-grazing, a general breakdown in the efficient management of the common and, I am bound to say, considerable bad feeling and acrimony.
	If my noble friend's amendment were accepted, it could lead to a disproportionate number of grazing animals being attached to a given piece of in-bye land. The farmer would have acquired only the rights, which could well lead to more supplementary feed being put out on the common. That then creates considerable concentration of stock, particularly in winter, and can lead to intensive over-grazing and loss of vegetation and biodiversity. I fully acknowledge the points made by my noble friend Lord Jopling about the problem of under-grazing, but there are also many existing examples of over-grazing, as Natural England clearly identified in its assessment of upland SSSIs. I believe this amendment would possibly enhance such a situation.
	My noble friend Lord Jopling mentioned a letter from the Federation of Cumbria Commoners. I also received a copy and was a little surprised by some of the suggestions forthcoming in that letter. It was suggesting that over-grazing problems could be dealt with through cross-compliance requirements under the single farm payment, or through agri-environment schemes. That is tantamount to suggesting that should an over-grazing problem be created by my noble friend's amendment, then the public purse would simply come forward to try to sort it out. I do not believe that is the way forward. We should be doing everything to mitigate such circumstances from arising in the first place. Furthermore, it presupposes that such schemes will remain in existence indefinitely. That does not strike me as a sound basis on which to legislate.
	It is worth adding a point that the Minister has made many times during the proceedings on the Bill. There has been considerable consultation to date and overwhelming support on the question of severance for what the Government have put forward in the Bill. So I do not think that my noble friend has yet made the case for accepting such an amendment. For the reasons I have put forward, it would create a great deal of difficulty.
	However, I will try to finish on a positive note. If my noble friend's amendment had included a further proviso, by which the consent of the owner—or even his reasonable consent—along with that of the commoners' association had been sought and agreed to, then there may, perhaps, have been a better chance of an agreement. How the Minister will react to that remains to be seen, but if my noble friend were to introduce an amendment along the lines suggested, we could actually solve the problem which he is so desperately trying to solve. As I said at the beginning, I have much sympathy for the problems that have been identified today in his amendment.

Lord Chorley: My Lords, I find myself instinctively drawn to the amendment proposed by the noble Lord, Lord Inglewood; I find the complexities of this business pretty formidable. I listened most closely to what the noble Earl, Lord Peel, said. When he was winding up his remarks, he said that he thought there was room for an amendment along the lines of the amendment proposed by the noble Lord, Lord Inglewood, to be proposed at the next stage, and I would find that attractive. I do not think that we need to get involved in grazing or over-grazing. All my instincts tell me that there will be a lot of under-grazing in the Lake District in the next few years unless major changes are made; but surely we do not want to get involved in that just now. I hope that the Minister will say that he is instinctively sympathetic to what the noble Lord, Lord Inglewood, is trying to do and we can make some progress at the next stage of the Bill.

Lord Bach: My Lords, I am getting up out of turn to say that the Government think that we may have a way through on this issue. Of course I do not want to stifle debate, and we have other important issues where there may not be any chance of such agreement. I mention that in case it is thought that somehow the Government are going to take one side or another.

Lord Livsey of Talgarth: My Lords, I know that the noble Lord, Lord Inglewood, has done a tremendous amount of work on Amendment No. 6, and he is genuinely concerned that rights of common attached to land owned by others who have dominant holdings with rights on the common can have further land transferred to them on land that has been retained. In proposed new subsection (3A), "particular land" is specified, so it appears that land with rights of common can be transferred within the same common only. As the noble Lord has just said, the wording of the amendment is extremely complex. The effect would be that the owner of the dominant holding with attached common rights could amass a large percentage of the rights on one common. That is a matter of concern. Is it a desirable state of affairs? It is probably not.
	Secondly, although it would ensure that rights of common remain with people who already have common rights on that common, clearly that is a good part of the amendment. What is likely to occur is a market in common rights, which may exclude other commoners from purchasing common rights. I am not sure whether that would be the case, but it is a possibility. That may well be all right in Cumbria, where holdings appear to be being sold, for example, for the farmhouse. The land remains and the common rights remain, and obviously there is concern in that situation about what happens to the common rights. The attached common rights could then be sold to another commoner on the same common, but again it could create a large amount of common rights in the hands of one grazier, for example.
	The fact that it also breaks the link between the holding and the common rights is not popular, particularly in my part of the country. Do we actually need this amendment? We have to ask that question. Clause 9(5) states clearly that the right of common can be severed temporarily for an unspecified period of time if it is being leased or licensed, and indeed it would be subject to regulations and to rules made in relation to the land by a commons association. Can the Minister give us some idea of what force those issues would have in this situation? Is that in fact a good substitute for the amendment proposed by the noble Lord, Lord Inglewood?
	The other factor is that the amendment seeks to introduce greater flexibility. As I have just said, the issues I have just raised could equally fill the gap. We could end up with distortions in common rights holders, if more common rights accrue, but the dominant holding remains the same size. What would happen, for example, in an outbreak of foot and mouth if the sheep are moved on to the land of the dominant holding? That holding, because of its size, might not be able to sustain the additional sheep or other livestock. The noble Earl, Lord Peel, has raised some important points.
	The noble Earl, Lord Caithness, asked me in Committee when I would say something about good husbandry. There is an issue of good husbandry because of the hefted flocks, which are part of the inheritance of upland Britain. The hardiness of those breeds of sheep could be put at risk through supplementary feeding, as the noble Earl, Lord Peel, has said. As for the whole issue of CAP reform, I forecast at the time that in reforming the CAP previously for the sheep regime, farmers would be paid per head for the number of sheep they had, and that that would result in the overstocking of sheep. That is exactly what happened. Decoupling, on the other hand—the new CAP reform, which takes away the support from the headage and puts it into a single farm payment—would probably result in fewer sheep being kept anyway and in less over-grazing as a result. I think that the remarks of the noble Lord, Earl Peel, are extremely wise in these circumstances. He is also right, I think, to say that when the Bill was announced, the suspension of severance had overwhelming support. What we are trying to do with this amendment is to row back. There is probably a solution here somewhere. I am sure that we will learn of it in due course. Those are my remarks at the present time.

Lord Cameron of Dillington: My Lords, I support the flexibility that the noble Lord, Lord Inglewood, is seeking to introduce. We are unlikely to get commons legislation again for several decades so it is important to install as much flexibility as possible while this legislation is going through. I personally believe that under-grazing, rather than over-grazing, will be the problem of the future. I support the amendment of the noble Lord, Lord Inglewood, and the local flexibility and autonomy that he aspires to. I also support the noble Earl, Lord Peel, who expressed concern about protection, whereby under the current proposal you could get a lot of stypes moving from all over the common on to one bit of the common, resulting in over-grazing. That would do a considerable amount of environmental damage. So I think that we have not quite got it right yet, but I should like to support the principles behind the amendment.

Baroness Byford: My Lords, I shall be very brief. Many noble Lords have covered ground that I would normally cover and the Minister has kindly said that he wants to think about it anyway. I am very grateful to the noble Lord, Lord Inglewood, for listening to what was said in Committee and for trying to adapt his original proposal. Those noble Lords not present in Committee will not appreciate the changes he has made. From my point of view, I shall be grateful to the Government if they are going to give this matter further consideration. As noble Lords have pointed out, the particular point is the way in which flocks may gather to what I have called "honey spots"—particularly with winter feeding. More than that, I do not want to say at this stage.

Lord Bach: My Lords, I am grateful to all noble Lords who have spoken in this important debate. The amendment revives a debate which we have had over the past few weeks about the appropriateness of the ban on severance in Clause 9. I am grateful to the noble Lord, Lord Inglewood, and others who do not necessarily take the same view as him who have taken the trouble to talk to us about the issues. I hope that, even though I am unable to accept the amendment in its current form, we may be able to find some common ground.
	Let me reiterate our position. Clause 9 is founded in a consensus—I am almost tempted to say unanimity—among stakeholders that the severance of rights of common should be prohibited. That consensus was reflected in the report of the stakeholder working group, which in 2003 stated:
	"We endorse the Government's commitment to prohibit severance of rights from the land to which they are appurtenant, and we feel that the Government should give urgent attention to the matter".
	We have done that, and I am not in favour of resiling from that consensus at the eleventh hour. However, the noble Lord, Lord Inglewood, reminds us that we are legislating for common land for a long time, perhaps as long as half a century. What may be the right answer for common land today may present an unacceptable straitjacket in the years ahead. The noble Lord, Lord Cameron, made that point a moment ago. We obviously cannot be certain about the future, and it is sensible to preserve some flexibility to accommodate unforeseen changes.
	That is why I am prepared to consider whether we can go some way towards meeting the noble Lord's aspirations, while maintaining a consensus. I know that there are strongly held positions in and outside this House on the matter, and I do not want to depart from the centre ground. I will explain briefly what we have in mind, and maybe we will be able to debate it in due course. We propose that a power should be taken, along the lines of subsection (5), to prescribe for the permanent severance of rights. The power would be a reserve power. We may not use it at all. Still less do we envisage using it as part of the routine implementation of the Bill.
	In so far as the power might be used, it would be used in relation only to particular areas, and then only when the Secretary of State or the Assembly was satisfied, after consultation, that there was clear support for doing do. There is no reason why the power should ever be used in relation to, say, Dartmoor, where there is no support to move in that direction. I hope that that is a response to the concerns of the noble Lord, Lord Livsey, that such a proposal may be all right in Cumbria but not elsewhere. We will think long and hard before making an order in respect of any particular part of the country. We go further, as we intend that there should be a requirement that either a statutory commons association or the landowner may veto the severance in any case.
	I will endeavour—it may be an endeavour—to bring forward an amendment in time for Third Reading, but time may be short and I cannot give any guarantees to the House about the outcome. I simply undertake to do what I can. I hope that my undertaking will encourage the noble Lord to withdraw his amendment. We may have found a way to resolve the dilemma.

Lord Inglewood: My Lords, I thank all noble Lords who have taken part in the debate, particularly the Minister, for the cordial, constructive and pragmatic way in which they have approached the matter. We have made progress in a way that does not damage people's interests, but rather improves the future for common land.
	It struck me during our debates on the Bill that severance, in most people's minds, means the detaching of common rights from a common. It also has a technical conveyancing meaning of the severance of common rights from the dominant tenement. I suspect that many people who have thought about it have not quite appreciated the technical difference between the two.
	I was heartened by my noble friend Lord Peel because, in his words, some proviso that involves the reasonable consent of the owner in the appropriate formulation could provide a constructive platform for further discussion to reach an agreement. I am extremely grateful to him for drawing that to our attention.
	In the debate, I deliberately avoided talking about the possible practical consequences of severance. Under the model by which I was proposing that this matter should be dealt with, those consequences are for another day.
	I cannot resist making one brief remark before withdrawing my amendment. In considering the effect of permanent, as opposed to temporary, severance, it seems to me that an awful lot of the argument is dependent on the biological phenomenon that a sheep which grazes on a common by virtue of a lease behaves entirely differently from a sheep which grazes on a common by virtue of a freehold right of grazing. I think that that is a biological development beyond where we are now. I thank your Lordships and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bach: moved Amendment No. 7:
	Page 5, line 16, at end insert—
	"(3A) Where a right of common to which this section applies is exercisable over land for which a commons association is established, the right may only be severed by a transfer under subsection (3)(a) or (b) if that association consents to the transfer.
	(3B) Where a person proposes to sever a right of common to which this section applies by a transfer under subsection (3)(a) or (b), Natural England or the Countryside Council for Wales as the case may be must—
	(a) give notice of the proposal to the owner of the land over which the right is exercisable unless his name and address cannot reasonably be ascertained;
	(b) in a case where there is no commons association established for the land, give notice of the proposal to such persons as they consider represent the interests of persons exercising rights of common over the land.
	(3C) A notice under subsection (3B) must be given at least two months before the transfer and must—
	(a) specify the name and address of the owner of the land to which the right is attached;
	(b) describe the right proposed to be transferred, giving such details as regulations may specify;
	(c) state the proposed consideration for the transfer; and
	(d) give such other information as regulations may specify."

Lord Bach: My Lords, I beg to move.

Earl Peel: moved, as an amendment to Amendment No. 7, Amendment No. 8:
	Line 11, at end insert—
	"(aa) enable the owner to negotiate in order to acquire such rights;"

Earl Peel: My Lords, I have already spoken to this amendment but the Minister made one or two points to which I would like to return now, if I may. I asked the noble Lord why, under his amendment, a commons association would have to give consent to the transfer of severed rights to Natural England or the Countryside Council for Wales, whereas the owner would only be given notice of the proposal.
	The Minister said that if CCW or Natural England were to hold such rights, they could do so in abeyance, whereas if the owner acquired such rights, in effect those rights would be extinguished. That is true to an extent in that, if the owner purchased the rights, they would become part of the surplus of the common, but that would not in any way prevent the owner letting or leasing the rights after purchase or, indeed, at a later date if he so wished. If under-grazing became a problem on a common and was clearly identified as such by the statutory agency, I am sure that in most cases the owner would be only too willing to let some of his surplus rights in order to overcome that under-grazing problem.
	However, the noble Lord asked why an owner would wish to buy rights simply to extinguish them. That has happened in many cases—I have done so myself. With regard to the commons in the north of England, where there has been a conflict between sheep and over-grazing on the one hand and heather for sporting purposes on the other, it has been in the interests of the owner to acquire the rights. Those rights then become part of the surplus and are held in abeyance to prevent over-grazing. That is why I pointed out to the noble Lord in Grand Committee that we could find ourselves in the rather ridiculous situation in which Natural England and the owner vie for the rights for precisely the same purpose.
	I tabled this amendment today as I was hoping for some assurance that the statutory agency would enable the owner to negotiate to acquire such rights if he or she wished to do so. I do not want to prolong this debate any longer—

Lord Williams of Elvel: My Lords, I am sorry to interrupt the noble Earl but, as I understand it, the amendment to which he originally spoke in this grouping was an amendment to government Amendment No. 7. So far as I am aware and unless noble Lords advise me to the contrary, the government amendment has already been passed, so unless this amendment is now moved—

Earl Peel: My Lords, the noble Lord is absolutely right. Government Amendment No. 7 has been passed but my Amendment No. 8 is an amendment to Amendment No. 7. I spoke to it but the Minister made some remarks and I am coming back to him now because I was not able to do so at the time. So if the noble Lord will forgive me—

Lord Bach: My Lords, perhaps the noble Lord will forgive me. I think that my noble friend is wrong about this. I moved the amendment formally just now but it has not yet been put to the House.

Lord Williams of Elvel: My Lords, if the noble Earl moves his amendment, we can discuss it.

Earl Peel: My Lords, I shall move it, as I did last time. Perhaps I could finish. I do not want to prolong the debate but, if the Minister can reassure me that he cannot imagine a case in which Natural England or CCW would try to acquire any surplus rights, when it is perfectly clear that the owner of the common wished to do so, I shall be very happy to withdraw the amendment. Is the noble Lord in a position to give me that assurance? I beg to move.

Lord Bach: Yes, my Lords, I can give the noble Earl that assurance.

Earl Peel: My Lords, I am extremely grateful to the Minister. I shall beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Greaves: had given notice of his intention to move, as an amendment to Amendment No. 7, Amendment No. 9:
	Line 23, at end insert—
	"( ) In exercising its powers under this section, Natural England or the Countryside Council for Wales, as the case may be, must consider and have regard to any representations that it has received."

Lord Greaves: My Lords, I thank the Minister for what he has said in response to this amendment. In those circumstances, I shall not move it.

[Amendment No. 9, as an amendment to Amendment No. 7, not moved.]
	On Question, Amendment No. 7 agreed to.
	[Amendment No. 10 not moved.]
	Clause 15 [Registration of greens]:

The Duke of Montrose: moved Amendment No. 11:
	Page 8, line 15, at end insert—
	"( ) An application under this section must be served within 12 months of the date on which the relevant use of the land has ceased."

The Duke of Montrose: My Lords, in moving Amendment No. 11, I shall speak also to Amendment No. 17. This concerns the registration of greens. The amendment deals with a time limit under which that process can take place. The Government have also put time limits in their Amendment No. 16. My point relates to recreational activity taking place over a period of time. Unauthorised or commonplace use of land for sports or pastimes may be ended by a variety of means. The landlord may find out about it and stop it; the land may be sold to someone who does not want the use to continue; or the land may be subject to compulsory purchase. Even if it is not altered, for example, by being ploughed up or built on, the implication is that although the recreational use ceased many years ago, an interested party may apply to have it registered as a town or village green. If the situation is allowed to run on indefinitely, it is a very unfair rule. No one should be subjected to the deprivation of the lawful use of their own property in that way. I am particularly concerned about the implications for local authorities which buy land when it becomes available to maintain their land bank or which obtain a compulsory purchase order and put only a portion of the land to permanent use.
	On Amendment No. 17, I understand from the Minister's explanations in Committee that the Government intend that the kind of access prohibition referred to is typified by the closures during the foot and mouth disease outbreak. Unfortunately, this Minister and his team will not always be in a position to interpret that meaning and it will run the risk of unintended consequences. I have in mind access to a town or village green that perhaps has been denied for health and safety reasons where the access is across land that is zoned for commercial, industrial or retail development. What about land that has been acquired using public money for the installation of a major roundabout on a trunk route with a plan to use the excess, when it is no longer needed for construction purposes, for a service area? It is perfectly possible that the slow grinding of the legal and planning mills has entailed several years when the area that is known as the town or village green has lain fallow and it has not been possible for people to access it. We considered putting a time limit on "temporary", but decided, first, to test the Government's opinion of the problem. Is the Minister prepared to look at a disregard of a maximum of 12 months or would he prefer a form of words that indicated clearly that, for a disregard to work, the original prohibition must have been intended to be temporary. I beg to move.

Lord Greaves: My Lords, I have an amendment in this group which is an amendment to a government amendment and I wonder if, for the convenience of the House, the Minister could speak to all of his amendments now?

Lord Bach: My Lords, perhaps I may speak early in this particular debate for exactly that reason. Amendment No. 11, just moved by the noble Duke, is very closely linked, as he said, with the effects of government Amendments Nos. 14 and 16, which are in turn closely linked with the other amendments that we are proposing to this clause in order to meet some of the points raised in Grand Committee. If the noble Duke will bear with me, I would like to speak first to those government amendments before responding to his, because I think that will help to ensure a better debate. I apologise in advance for the length of my reply, but we are dealing here with an important part of this Bill; namely, greens, and I will be as quick as I can.
	I should like to begin by setting out the context for all of these amendments. Clause 15 replaces the current provisions in the Commons Registration Act 1965 about registration of town or village greens. Like the rest of that Act, those provisions will be repealed by this Bill, once it is enacted.
	The position to date under the 1965 Act, as amended by CROW, has been that if a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on land for at least 20 years, the land may be registered as having become a green.
	Clause 15 is currently in the form in which it was introduced into this House, and broadly reflects the present greens definition under the 1965 Act. But we indicated in Committee that we would consider making various amendments to the clause, and these we have brought forward. Our aim is to deliver a provision that substantially reflects the principles on which greens law has been based across the centuries, but that also reflects the realities of modern living, and resolves some of the difficulties that have arisen under current case law.
	Our starting point in all of this is that where people have genuinely used a local area of land for their recreation as of right—that is, openly, without permission, and without force—and can show that this kind of use has continued for at least 20 years, it should be possible for them to get the land registered as a green. But if one or more of those things cannot be shown, then registration must remain impossible. Noble Lords will appreciate that these principles are firmly rooted in our ancient law of custom.
	I will now explain our reasoning behind each one of our amendments. Amendments Nos. 12 and 13 change Clause 15(2) and (3) in identical ways. The current requirement in those subsections is for the recreational use relied upon by an applicant for registration to be by a significant number of,
	"the inhabitants of any locality, or of any neighbourhood within a locality".
	This would be replaced by a much simpler requirement for that use to be made by a significant number of "local inhabitants". The phrase "local inhabitants" has a clear everyday meaning, and we do not attempt to define it in the Bill.
	What we are seeking to do with these two amendments is to make the position clearer and simpler for all concerned. The current term "locality" that was used in the 1965 Act has been much debated. It has proved too restrictive, because it is taken to refer to a recognised administrative locality, such as a parish. Adding the "neighbourhood" formula in 2000 has not resolved this difficulty. In urban areas in particular, it has proved problematic to show that the use that took place emanated from the right kind of area. The noble Lord, Lord Greaves, spoke of this problem in Grand Committee, and this amendment is the result.
	Essentially, the convoluted formula used on this front to date has failed to convey the crucial point, which is that whatever type of place people live in—urban, rural, large or small—their recreational use of a local area of land should be capable of justifying its registration as a green, so long as three critical conditions are met. First, that their recreational use takes place as of right—I have already summarised what that means; secondly, that it takes place for at least 20 years; and thirdly, that a significant number of people are involved in the recreational use. These are of course already the key tests under the 1965 Act as amended.
	Amendment No. 14 and new subsection (6), as proposed by our Amendment No. 16, relate only to a case where local inhabitants have already used land for recreation as of right for 20 years but where use as of right is then ended by the landowner. Clause 15 allows regulations to prescribe a period of grace after such use has ended, within which an application to register the land as a green may still be made. The underlying principle is that after that period of grace has elapsed it would be too late to apply for registration unless a fresh 20 years' use was subsequently accumulated.
	Instead of our prescribing the period of grace in regulations, the two amendments taken together will set out the position in the Bill. In proposing to do that, we are responding to the views expressed in Committee that the setting of the period is an important policy matter that should be addressed in the Bill rather than in regulations. The effect of our amendments is that the default period of grace would be two years. There would be a transitional arrangement for cases where use as of right had already been ended before commencement; in such a case, the period of grace would be five years.
	Amendment No. 11 argues for the period of grace to be only 12 months, but we do not think that that is long enough. There is a balance to be struck. Yes, we must help landowners who wish to do so to achieve greater clarity about the status of such areas of land without encountering endless delay and uncertainty; but, on the other hand, there needs to be a fair opportunity for an application to be made to register land as a green if it has been used in a qualifying way for at least 20 years but its use is then brought into question.
	In relation to that aim, there is much to be done between the ending of use as of right by the landowner and submitting a viable application on behalf of local people to register the land as a green. First, those people must find out about the existence of that area of law. It is not the sort of knowledge that the average person carries in his head; it is complex and esoteric. They will need to do their research, discover that the registration system exists, get hold of guidance, investigate the detailed criteria for registration and assess the extent to which their own case is likely to meet the criteria for an application.
	If they think in principle that it will, they will then have to set about collecting detailed witness statements testifying to the use that particular local inhabitants have made of the land or know has been made of it by other local people. That is a lengthy process. All the statements and supporting information must then be put together in a proper application in the prescribed form to the commons registration authority.
	In some cases, one year may be long enough for all that to happen; in others, it will certainly not. We must remember that those who must do all that researching, assessing, collecting, co-ordinating, marshalling and submitting are ordinary people with their own lives to lead and day jobs to do. The same is true of the people on whose evidence they will be reliant as they assemble the case for registration. Those things inevitably take considerable time. That is why in our Common Land Policy Statement 2002 we said that we were minded to allow a two-year period of grace for applications. That was a shortening of the five-year period of grace that originally we had in mind, with little opposition, in our consultation paper of 2000. In normal cases, though, we do not think that five years is needed, so long as people become aware promptly of the need to take the kind of action that I have described.
	Under the principle, which I will describe in a moment, that would be set by our Amendment No. 16, challenges by the landowner to long-established as-of-right use would need to take forms such as physical exclusion of people or overt prohibition of access to be effective. So local people would be put on notice that their ability to use the land in future is being placed in jeopardy and that they need to take action to secure registration of the land, if there has been qualifying use and they consider that the various tests are met. So two years should normally be a long enough period of grace in such cases.
	To date, though, the position has been much less clear. There has been uncertainty about what some of the 1965 Act tests require the applicant to prove, with a considerable see-sawing of opinion in case law. Challenges to as-of-right use have been possible through more subtle means—such as simply erecting a welcome notice—that have failed to put local people on notice that that apparently friendly action constituted a threat to their future use of the land. That is why we suggest that a five-year period of grace should apply in any case where 20 years' use as of right was achieved, but then ended before commencement of this clause. This is a purely transitional provision. Within five years of commencement of this clause, a two-year period of grace will always apply when as- of-right use is ended after 20 years or more, and our view is that it will then be sufficient.
	New subsection (5)(b), which is inserted by Amendment No. 16, addresses the concerns expressed in Committee by the noble Duke and the noble Baroness that this matter is too important to be dealt with by regulations. We have decided that they are right on this. So in place of the current subsection (4), we propose the following clear principle: in a case where there has already been 20 years' use as of right, a subsequent grant of permission for local inhabitants to use the land for lawful sports and pastimes should not be regarded as making use as of right cease. Otherwise, it would prevent a successful application to register the land, even though there had been the requisite period and character of use. That would not be fair, especially since local people might not be put on notice until it was too late that their future recreational use of the land was being challenged by such giving of permission.
	Our aim here is simple: everyone should know where they stand if the landowner challenges well established as-of-right use. Because overt challenges, such as physically excluding people, or erecting prohibition notices, put local people on notice of a threat to their recreational use of the land, they will then be able to take stock and decide whether the character of the use to date is likely to support registration of the land as a green.
	I want to emphasise that nothing in this amendment will prevent a landowner taking clear action to make existing recreational use permissive at any point before 20 years' use as of right has been achieved. So long as the permission given is effectively communicated to users of the land, that would immediately stop the clock running, and rule out a successful application to register the land. It is only once 20 years' use as of right has been achieved in the first place that this amendment would have any effect.
	The other element of Amendment No. 16 is the introduction of new subsections (4) and (5)(a), which respond to the concerns expressed by the noble Lord, Lord Greaves, in Committee. In a situation where local people have used land as of right for lawful sports and pastimes for a period, but not yet for 20 years, it cannot be appropriate for any temporary statutory closure to wipe the slate clean, so that even though use as of right might then continue after the lifting of the statutory closure, the clock would automatically have been reset by the statutory closure to zero years. I emphasise that this would not necessarily be the effect of a statutory closure in any particular case, even if we did not table this amendment. The effect of such a closure at common law would depend on the circumstances, particularly on how long people were excluded for under the statutory closure. But we want to put this matter beyond doubt and make the position consistent.
	New subsection (4) makes it clear that a statutory closure does not of itself curtail any period of as of right use that has been achieved to date: it merely freezes the position as it stood when the closure was imposed. Of course, it remains open to the owner, during or after the period of statutory closure, to end as of right use, and that would then prevent the full 20 years being accumulated, but that is a different issue and is not affected by this amendment.
	New subsection (5)(a) makes it clear that in a case where 20 years' as of right use has already been achieved, an application to register the land remains possible under subsection (2), even if there is a subsequent statutory closure. We think it worth while to spell out that in those circumstances an application could proceed under subsection (2) as if the recreational use continued to the time of application.
	I have taken a long time to explain what we have done to meet some of the concerns raised in Committee. I think it is now appropriate for me to sit down so that the other amendment in this group can be spoken to.

Lord Greaves: My Lords, I thank the Minister for that long explanation on important issues that took up quite a lot of time in Grand Committee, for listening and for putting forward amendments which certainly satisfy the points of issue and principle that a number of us raised in Grand Committee with our amendments. The Minister said that he would look at this carefully. He has done so and has come back with amendments which, largely, satisfy many of the points that we made. Once again, I thank the Minister and the Government for that and, as the Minister said earlier, for improving the Bill.
	My Amendment No. 18 would amend a government amendment. As the Minister said, Amendments Nos. 12 and 13 would clear up the incredibly confused position about neighbourhoods and localities. The amendment is as good as any might be in terms of local inhabitants. We will no doubt get another series of applications which have to be determined on the basis of local inhabitants. Like all of those things, we will see whether it works. But the changes that my noble friend Lady Miller of Chilthorne Domer and the noble Lord, Lord Whitty, tried to sort out during the passage of the CROW Act five and a half years ago did not work. Let us hope that these do work. So I cheer the Government on for these amendments.
	Government Amendment No. 19 responds to amendments moved by the noble Lord, Lord Vinson, who is not here today, and myself in Grand Committee. If you own land and want it to be a green, and the local people want it to be a green, it can now become a green without waiting for 20 years. The noble Lord, Lord Vinson, explained how he had donated land to his local parish council. It was being managed as a green, but it could not be legally a green until that situation had happened for 20 years. That is clearly unsatisfactory. This amendment should sort that out. In the ward that I represent on my local council in Pendle, we have the Millennium Green. It was industrial land that was reclaimed as a green under a millennium funding project. It is run by an independent trust which, no doubt, will now be able to get it turned into a town green without waiting another 15 years. This is good stuff for which I thank the Government.
	Amendment No. 16 sorts out what we call the "foot and mouth" problem, but, obviously, there could be other reasons why statutory closures take place. This amendment should sort that out and end uncertainty. Once again, I thank the Government for responding to the amendment that I moved previously. My amendment probes what,
	"by reason of any enactment",
	means in new subsection (4) of government Amendment No. 16. The government amendment says that,
	"there is to be disregarded any period during which access to the land was prohibited to members of the public by reason of any enactment".
	It seems to me that it is not the enactment which is the problem, it is the actions which people quite legitimately take under that enactment. I propose that the subsection should read,
	"action taken under any enactment".
	I will listen with interest to what the Government have to say. Perhaps they will assure me that my concerns are of no real concern and that their amendment means exactly what I want it to mean. Once again, I thank the Government for these three amendments which substantially improve the legislation.

Lord Bach: My Lords, I am grateful for what the noble Lord has said. I know the noble Duke, the Duke of Montrose, has spoken to Amendment No. 17, which is very much in line with Amendment No. 18 of the noble Lord, Lord Greaves. I can briefly answer those now.
	The amendments both amend the last aspect that I spoke to on our Amendment No. 16, regarding statutory closures. Amendment No. 17 seeks to emphasise that a period of statutory closure may be disregarded only for the purposes of determining the period of 20 years if it is a temporary period. Amendment No. 18 in effect questions the wording of our expression,
	"by reason of any enactment",
	and seeks to ensure that the phrase used covers any type of action taken under any enactment to prohibit public access to land. I am happy to reassure both noble Lords that these amendments are, certainly in our view, unnecessary.
	On the point of the noble Duke, the Duke of Montrose, no mischief could flow from our Amendment No. 16 in its present form if a statutory closure of land were permanent rather than temporary. If 20 years' use as of right has not been achieved by the time of statutory closure, it never could be achieved if people could never again use that land. On the other hand, if local inhabitants had already achieved that 20 years' use as of right by the time of the closure, it might be theoretically possible to register the land as green. Even if this happened, however, people would remain unable to use it, because of the permanent statutory closure. So we think that adding the word "temporary"—which noble Lords will understand might prove difficult for the courts to interpret, although they would of course be able to—would not make any practical difference to the provision.
	On the amendment of the noble Lord, Lord Greaves, I am advised that the wording used in our Amendment No. 16—
	"any period during which access to the land was prohibited to members of the public by reason of any enactment"—
	would cover any circumstances in which land was closed to the public, or, indeed, merely to local people, under any statutory power.
	Briefly, government Amendment No. 19, as we heard, would allow for the voluntary registration of land as a green by the landowner. It was prompted in Committee by the noble Lords, Lord Vinson and Lord Greaves, who suggested that the owner of any land should be able to register it, voluntarily, as a green. It may come to many noble Lords as a surprise that that was not already possible. It certainly surprised me. It seems a nonsense that a landowner cannot do that at present. We noted the general enthusiasm for this proposal, and have responded. We have avoided complicating with red tape what is essentially a simple concept. We have, however, inserted a basic safeguard at new subsections (8) and (9), that consent is required from any leaseholder or any holder of a financial charge over the land in question. That is no more than common sense.
	Finally, Amendment No. 23 to Clause 16 is consequential to Amendment No. 19, which incorporates some lengthy text that currently sits in Clause 16 into Clause 15(9). Fascinatingly, we are removing that detail from Clause 16 and simply referring back to the wording we are introducing into Clause 15.

The Duke of Montrose: My Lords, I thank the Minister for being so detailed. We weigh all his words with great care, because they certainly explained a lot of complicated matters. In looking at this, you think of those who draw up the groupings in this area, and wonder whether we were in fact trying to deal with a group that was almost indigestible. However, the Minister has made a very good job of sorting out the various elements that came through.
	The first element was our amendment about the time that should be available. The Minister gave a full and lucid explanation of why time was needed. He has gone for 24 months and we were talking of 12. I do not think we are going to cause any great fuss over that.
	I am interested in government Amendment No. 16, and will read the Minister's words very carefully. In paragraph 4(b), it says:
	"where permission is granted in respect of use of the land for the purposes of lawful sports and pastimes, the permission is to be disregarded in determining whether persons continue to indulge . . . 'as of right'".
	I think that the Minister explained it, but I shall have to read it again just to be sure. In the absence of my noble friend Lord Vinson, we must certainly thank the Minister for introducing the amendments which corrected the problem that was a great worry to him. It was very good to hear that. The other subject with which we dealt was how one describes people living in an area. We will have to trust the Government's explanation that "local inhabitants" describes everybody whom we wish to see included in the provision. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bach: moved Amendments Nos. 12 to 14:
	Page 8, line 17, leave out from first "of" to "have" in line 18 and insert "local inhabitants"
	Page 8, line 22, leave out from first "of" to "indulged" in line 23 and insert "local inhabitants"
	Page 8, line 26, leave out from "within" to end of line 28 and insert "the relevant period"
	On Question, amendments agreed to.

Baroness Byford: moved Amendment No. 15:
	Page 8, line 28, at end insert—
	"(3A) In considering any application under this section, a registration authority may decline to consider or to register—
	(a) any land which is built on or paved and was lawfully built on or paved before the coming into force of this Act;
	(b) part of an open space, another part of which is registrable under subsection (2) or (3), if the part of the open space concerned does not meet the criteria set out in subsections (2) or (3);
	(c) any open space or part of an open space in a town that has been lawfully fenced, or has had signs placed on it or adjoining it limiting rights of access, or to which access has been lawfully restricted during any part of the 20 years concerned.
	(3B) For the purposes of this Part a tract of land in an urban area may not be registered as a town or village green merely because it is an open space over which people have walked or exercised animals throughout a period of 20 years."

Baroness Byford: My Lords, this amendment is designed to clarify the situation in urban areas as opposed to rural common areas. I make no apology for returning to this issue. It is of increasing concern to local authorities, particularly those which are based in urban areas.
	It is agreed across the Chamber that there is a need to protect traditional commons and village greens. Many of them have fallen inside city boundaries as those cities have grown and many have been created as focal points for communities. I think that we all know of examples of village greens, with their open spaces, playgrounds, seats and trees. Often, they are playing fields. Similarly, we may know of traditional commons, greens and heaths that have become enclosed in urban space.
	However, there is another form of open land that falls outside any common-sense definition of a village green. That could be a tract of space by a major road, a derelict patch of ground or a piece of ground which may be attached to a traditional green, but which has been fenced from it and used for other purposes. It may be the site of an old electricity substation, for example.
	We should surely aim to protect the first category of land, but allow local authorities and local communities to determine the best use of the second category. We should remember that all this ground is covered and protected by planning systems.
	However, registration as a village green provides much greater protection. Since the recent changes in the law, following test cases that we have discussed, there have been a number of examples where campaigners who oppose the development of ground have sought village green status for urban land and thus frustrated possible development.
	I mentioned in Committee the case of one London borough which intended to sell a small tract of land alongside a major dual carriageway leading into London, much of the rest of which had been built on as far as the edge of the road. Owing to its position, the land was worth well in excess of £1 million. There was no playing field on it; there was no play area. The local authority published plans to use the capital receipts from the land to provide affordable housing. Both the sale and the intended use were wholly in accord with, and possibly encouraged by, government planning strategy and the strategy of the mayor. However, as is frequently the case with plans for affordable housing, local objections were raised and campaigners succeeded in having the land registered as a village green under the law now established. No one had ever thought of it as a village green previously, but it is now, even though no village centre exists. It spelt the end for capital receipts; it spelt the end for affordable housing. The local authority concerned faces other applications.
	Meanwhile, a risk analysis conducted by a London local authority concludes that even land that has been paved over or otherwise built on could in some circumstances be registered as a village green. It could be a car park, a garden attached to a local community centre or a library, for example. Village green status could be sought to frustrate the extensions of existing community building.
	I know from the Minister's response at an earlier stage that he understands the points that we have made and he was going to think about them, but I wonder whether he fully understands the potential gravity of the situation, particularly in urban settings. A great deal of local authority land is potentially at risk and, as pressure increases to provide extra housing in some areas, the problem is likely to worsen and not to ease. I appreciate that my wording may not be perfect, but I hope that, if not today but perhaps at Third Reading, the Minister will indicate any ways in which he is prepared to go further to address the problem. Has he consulted officials in the Office of the Deputy Prime Minister in detail on the planning implications of this issue? It may be a good thing; it could be a bad thing; but it could drive a coach and horses through Mr Prescott's visions of developing underused land in urban settings.
	I believe that all the circumstances covered in my amendment are ones that ought to frustrate automatic designation of urban land as a village green. I would appreciate a detailed response from the Minister, and if he cannot give it today—though I suspect that he will be able to do so—I hope that he can give me one before Third Reading. If he were to do so and could tell me that it either could or could not be included in the Bill, he would give considerable comfort to local authorities that are trying to plan sensible asset management strategies for the future. Further clarification is needed, and if he cannot accept the amendment, though I do not intend to press it today, I reserve the right to come back with it at Third Reading. I apologise to noble Lords that it is rather lengthy, but it deals with a slightly unusual aspect of this Commons Bill. I beg to move.

Lord Greaves: My Lords, it will come as no surprise to anyone that my basic instincts and prejudices are in favour of having as much land as possible registered as commons, access land, village greens and the rest of it. Having said that, I believe that the noble Baroness, Lady Byford, has raised an important underlying question that needs answering. The whole process of identifying and registering greens is very important, and it is vital that people have the right to do it when appropriate—and when the appropriateness is in question. There is no doubt that some people in some places are using the process to frustrate what would otherwise be perfectly legitimate developments, which have gone through all the planning procedures, have planning permission and in general—whether it is right or wrong in an individual case—have been accepted as appropriate by the democratic community processes that take place.
	So there is a problem here. I do not know whether there is an answer to it, or whether it is something that we shall have to live with in the interests of the wider legislation. Like the noble Baroness, I am interested in this question and in what the Minister has to say. I do not believe that the amendment is quite right—in fact, I believe that one or two bits of it are wrong; but there is an issue here which she is right to raise, and we look forward to the Minister's response.

Lord Bach: My Lords, the amendment probes the effect of various possible characteristics of land on its ability to be registered as a green. I am grateful to the noble Baroness for moving it, because this is an important subject.
	I shall briefly discuss each of the scenarios raised by the amendment in order. Subsection (3A)(a) of the amendment is about land lawfully built on or paved before the commencement of the Act. There could be a viable application to register land as a green under this legislation only if a significant number of local inhabitants had actually been using the land as of right for lawful sports and pastimes for at least 20 years. Land covered by a secure building could not be used in this way, so the question of its registration would never arise, unless the building stood within a larger area that someone tried to register. I will deal with that in a moment under paragraph (b). Paths or paved areas within an area of land used for recreation could be used for lawful sports and pastimes in a qualifying way, and such use could legitimately contribute to a claim that land was green. We do not see any reason to exclude such areas arbitrarily from registration.
	Subsection (3A)(b) relates to a situation where perhaps most of an area of land is legitimately the subject of an application for registration, but a small part does not meet the criteria. The short answer is that land cannot be registered unless it meets the criteria. If there were an application to register an area of land and it were clear that most of it had been used in a qualifying way, but parts of it, such as buildings or fenced-off areas, had not, there would be two options for the local authority responsible for determining the application—or rather, the authority, as it may not be a local authority. It could invite the applicant to resubmit the plan of the land covered by the application, including only those parts of the land that had been used in a qualifying way, or, more straightforwardly, the authority could simply decide which parts of the land had been subject to qualifying use and register only those parts as green, leaving the remainder off the register. We consider that it is already possible for authorities to do this, and will remain so under the new Act.
	Subsection (3A)(c) concerns open space that has been lawfully fenced or has signs on or near the land limiting access, where perhaps access has been limited or prohibited for some part of the 20 years. Where the owner of any land has physically prevented people from using it for recreation, or has clearly indicated, by erecting prominent signs or other measures, that recreational use of the land is prohibited or that it takes place by permission only, 20 years' use as of right can never occur in the first place, so a viable application to register the land cannot be made. The same is true where use as of right does take place on land, but from time to time that use is suspended for long enough to prevent any continuous period of 20 years' use as of right ever being accumulated. Again, there could not be a viable application.
	Fencing is not directly relevant to these matters unless it physically prevents people from entering the land. If gates or other entry points are kept locked and the fence is kept in good condition, any trespassing by clambering over the fence or gate would be very unlikely to support a claim of as-of-right use. However, if the field boundaries were broken down or had gaps in them where people could freely enter, or the gates were left open or unlocked, or the rest of the land could be accessed from a public right of way across it, what would count would be the character of any recreational use that people made of the land as a whole. It would be wrong for the Bill to rule out registration of land as a green simply because it is fenced or has some other formal hard boundary. Even our oldest greens might often offend against that particular criterion.
	Subsection (3B) of the noble Baroness's amendment speaks of urban open space, and suggests that recreational use of it for 20 years should not be able to lead to registration. Urban open space may just as legitimately become a green as village open space. We believe that what counts is the character of any recreational use that occurs, not whether the land is situated in a city. Often it is made clear by notices around such urban open spaces that the land is made available solely by permission of the owner. Many are locked at night, which would be completely inconsistent with any claim that the land has become a green by long use as of right. If land has indeed been used as of right for lawful sports and pastimes by a significant number of local inhabitants for at least 20 years, the fact that it happens to be in an urban area should not prevent its registration as a green. If that were to become the case, our ancient expression "town green" would never have caught on in the first place.
	The noble Baroness asked pertinently about greens' registration affecting affordable housing. We do not think it would. The criteria for registration, as I have already pointed out, are very tight indeed. As I say, the only cases that can succeed are those where local inhabitants have used land for lawful sports and pastimes for more than 20 years without force, permission or secrecy. If such use has been permissive, there are no grounds for registration and the specific and limited periods of grace we are introducing after which registration will no longer be possible without the passage of another 20 years will help achieve clarity and certainty about the status. In a case where all the rigorous tests are met, it would not normally be appropriate to develop the land even for social housing. If in a particular case an area of green were the only suitable location for such development, it would be possible to apply for a statutory exchange between that and other land so that the green was created elsewhere and the current green developed.
	The noble Baroness also asked me whether we had consulted with officials from the Office of the Deputy Prime Minister. We consulted fully with them regarding the planning implications of greens registration as part of the extensive consultations we undertook on our various consultation papers as part of the preparations for the Bill. I have tried to explain where we stand on these important issues.

Baroness Byford: My Lords, I am grateful to the Minister for that full reply to a complex question. I shall read what he said carefully. He said that the two departments consulted each other. However, where will the balance be drawn? If no alternative land is offered, which will take priority? Who will decide that, or will the matter be returned to the Secretary of State for consultation? I am not sure where the one overlaps with the other.

Lord Bach: My Lords, I shall write to the noble Baroness on that matter.

Baroness Byford: My Lords, I am grateful to the Minister because it seems to me that two different departments will consider the matter. I shall spend no more time on the matter but I am grateful to the Minister for his full consideration of it. I may need to return to it, but at this stage I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bach: moved Amendment No. 16:
	Page 8, line 29, leave out subsection (4) and insert—
	(4) In determining the period of 20 years referred to in subsections (2)(a) and (3)(a), there is to be disregarded any period during which access to the land was prohibited to members of the public by reason of any enactment.
	(5) For the purposes of subsection (2)(b) in a case where the condition in subsection (2)(a) is satisfied—
	(a) where persons indulge as of right in lawful sports and pastimes immediately before access to the land is prohibited as specified in subsection (4), those persons are to be regarded as continuing so to indulge; and
	(b) where permission is granted in respect of use of the land for the purposes of lawful sports and pastimes, the permission is to be disregarded in determining whether persons continue to indulge in lawful sports and pastimes on the land "as of right".
	(6) In subsection (3)(c), "the relevant period" means—
	(a) in a case where the cessation referred to in subsection (3)(b) occurred before the commencement of this section, the period of five years beginning with that cessation;
	(b) in a case where the cessation referred to in subsection (3)(b) occurred after the commencement of this section, the period of two years beginning with that cessation."
	[Amendments Nos. 17 and 18, as amendments to Amendment No. 16, not moved.]
	On Question, Amendment No. 16 agreed to.

Lord Bach: moved Amendment No. 19:
	Page 8, line 31, at end insert—
	"(7) The owner of any land may apply to the commons registration authority to register the land as a town or village green.
	(8) An application under subsection (7) may only be made with the consent of any relevant leaseholder of, and the proprietor of any relevant charge over, the land.
	(9) In subsection (8)—
	"relevant charge" means—
	(a) in relation to land which is registered in the register of title, a registered charge within the meaning of the Land Registration Act 2002 (c. 9);
	(b) in relation to land which is not so registered—
	(i) a charge registered under the Land Charges Act 1972 (c. 61); or
	(ii) a legal mortgage, within the meaning of the Law of Property Act 1925 (c. 20), which is not registered under the Land Charges Act 1972 (c. 61);
	"relevant leaseholder" means a leaseholder under a lease for a term of more than seven years from the date on which the lease was granted."
	On Question, amendment agreed to.
	Clause 16 [Deregistration and exchange: applications]:

Lord Greaves: moved Amendment No. 20:
	Page 9, line 12, at end insert—
	"(e) the extent to which the replacement land is not less advantageous than the release land in meeting the requirements of this subsection"

Lord Greaves: My Lords, this amendment is grouped with government Amendments Nos. 21 and 22, which go some way to meeting the issue. However, I shall speak to those amendments when I speak again after the Minister replies so that I can respond to his comments.
	Amendment No. 20 seeks to include, as one of the criteria that the appropriate national authority has to take account of when considering deregistration and exchange applications,
	"the extent to which the replacement land is not less advantageous than the release land in meeting the requirements of this subsection".
	We debated this matter at length in Grand Committee. It concerns circumstances in which greens and commons are deregistered and in which replacement land may or may not be provided. Where replacement land is provided—and where the land in question is more than 200 square metres in area—we discussed whether there should be criteria to ensure that it was adequate as a replacement for the release land. I proposed an amendment that suggested it had to be equally advantageous. The noble Duke, the Duke of Montrose, proposed an amendment that suggested it had to be equal in area. Various other proposals and suggestions were put forward. The Minister—I think quite rightly—indicated that there had to be flexibility and that to propose exact equivalence was silly as the replacement land might constitute a larger area and be of better quality, and therefore would be more advantageous than the land that was given up, and that in any case it was sensible to look at individual local circumstances on their merits and to retain flexibility in the matter.
	We have taken account of what the Government have said and of the need for flexibility. As we believe that the quality of the replacement land constitutes an important issue which should appear on the face of the Bill, we have listed it as one of the criteria under which the application should be determined. Clause 16(6) states:
	"In determining the application, the appropriate national authority shall have regard to—
	(a) the interests of persons having rights in . . . the release land . . .
	(b) the interests of the neighbourhood;
	(c) the public interest;",
	and so on. We propose the addition of the words,
	"the extent to which the replacement land is not less advantageous than the release land in meeting the requirements of this subsection".
	That is a reasonable measure to ask to be included in the Bill. It would not impose any rigidity; it would impose flexibility, if you can do such a thing. However, if the measure were included in the Bill, it would have to be considered. As I said previously, making people consider something and reach decisions on it is important in legislation. I beg to move.

Baroness Farrington of Ribbleton: My Lords, government Amendments Nos. 21 and 22 are minor technical amendments to Clause 16 to bring greater clarity to the intention behind the current wording of subsection (8). The amendments provide that, where an application for a deregistration order under this clause does not include a proposal for replacement land, the national authority must when determining the application have particular regard to whether the absence of such a proposal is prejudicial to the interests of those with rights over the land, including commons rights holders, the neighbourhood and the public.
	We have taken note of concerns raised by the noble Lord, Lord Greaves, and, I believe, by the noble Duke in Committee that the previous wording of Clause 16(8) was not sufficiently clear. We believe that the amendments address that concern. The subsection as now drafted does not require the national authority to refuse an application where no replacement land is offered but does make it clear that this will be a factor in the determination process. I assure the noble Lord, Lord Greaves, that his amendment is no longer necessary as a result of these government amendments, and that all that both he and the noble Duke wished to happen will now happen.

The Duke of Montrose: My Lords, I am grateful to the Minister for explaining the further depths of the government amendments. We are very interested in the outcome. Of course one welcomes Amendment No. 22, to leave out subsection (8), which seems unnecessary given the provisions in subsection (4). However, Amendment No. 21 seems to be lacking in one regard. The "appropriate national authority", which could be CCW or the Secretary of State, should "have particular regard" only to the interests of those mentioned in paragraphs (a) to (c) of subsection (6). Landowners are included only under paragraph (a) as,
	"persons having rights in relation to . . . the release land".
	Even there, it is the commoners' rights which are to have particular attention paid to them. There seems to be no special protection for the rights of the landowner on replacement land. Though that is another issue, there seems to be some imbalance here which suggests to us that some will be considered more fairly than others. In the mean time, however, we welcome these amendments as they stand.

Baroness Farrington of Ribbleton: My Lords, I am not sure whether I will be in a position to deal with the noble Duke's question, but I will seek to do so. I can reassure the noble Duke and the noble Lord, Lord Greaves, that when determining a deregistration and exchange application the national authority will consider the effect of the exchange on each of the interests set out in subsection (6), and take into account any other relevant factor. That will inevitably involve careful consideration of exactly the sort of issues that both the noble Duke and the noble Lord, Lord Greaves, have referred to—the extent to which replacement land is a suitable substitute for release land. I hope these assurances will help.
	On special protection for rights of owners, landowners of both release and replacement land make the applications, so they will always have their interests protected because they are involved in that process. I hope that will reassure the noble Duke and that the noble Lord, Lord Greaves, will now feel confident in withdrawing his amendment.

Lord Greaves: My Lords, the noble Lord, Lord Greaves, may well withdraw his amendment, but whether he is satisfied with the Government's reply is a different matter. I am grateful for what the Government have said and in particular for their Amendment No. 21. That is more than a minor, technical matter. The balance of the wording is significantly different and improved. It refers to patches of land that are to be deregistered which are less than 200 square metres. However, I do not think that Amendment No. 21 covers the point that I am making in Amendment No. 20, which refers to all deregistrations and replacements—not just those of less than 200 square metres.
	The noble Baroness says that we can be assured on whether the quality and size of the patch, and so on, are sufficient to warrant deregistration of the original release land. She says we can be assured that that will happen. I would rather have things in the Bill. By the time this legislation is replaced by the next Commons Bill, most of us will probably not be on this Earth. Who knows who will be administering such legislation at that time? So the assurance that everything will be okay on the day is not necessarily adequate. This is something to which I may well want to return. In the mean time, I may engage the Minister in correspondence about it. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Farrington of Ribbleton: moved Amendments Nos. 21 to 23:
	Page 9, line 12, at end insert—
	"(6A) The appropriate national authority shall in a case where—
	(a) the release land is not more than 200 square metres in area, and
	(b) the application does not include a proposal under subsection (3),
	have particular regard under subsection (6) to the extent to which the absence of such a proposal is prejudicial to the interests specified in paragraphs (a) to (c) of that subsection."
	Page 9, line 20, leave out subsection (8).
	Page 9, leave out lines 28 to 39 and insert ""relevant charge" and "relevant leaseholder" have the meanings given by section 15(9)."

On Question, amendments agreed to.

Lord Livsey of Talgarth: moved Amendment No. 24:
	After Clause 16, insert the following new clause—
	"CHANGES IN OWNERSHIP OF COMMON LAND
	When an electronic register under section 25 is complete—
	(a) each commons registration authority shall inform Her Majesty's Land Registry of all common land in its area; and
	(b) the land registry shall notify the relevant commons association of any proposal to exchange ownership of common land."

Lord Livsey of Talgarth: My Lords, I shall speak to Amendment No. 24 and Amendment No. 32. We debated some aspects of the issue in Committee. I have brought forward the amendment because of some remarks made by Ministers about what they hoped to do when there was poor communication between the commons registration authorities and the Land Registry. This is really a way of looking at means of trying to improve it in the context of electronic registration being on its way. It is already quite well advanced in some cases but not, sadly, in others.
	Amendment No. 24 relates to changes in the ownership of common land. The amendment states:
	"When an electronic register under section 25 is complete—
	(a) each commons registration authority shall inform Her Majesty's Land Registry of all common land in its area".
	That does not appear to have been happening too well at present. The amendment goes on to state:
	"(b) the land registry shall notify the relevant commons association of any proposal to exchange ownership of common land".
	Now that really should be a routine operation. If necessary, it can be carried out by a commons registration authority.
	Paragraph (a) of the amendment will ensure that the commons registration authority informs the Land Registry of all common land in its area. The Land Registry will then have the necessary information. By the same token, once it has this information, it is surely duty-bound to inform the relevant commons association of any exchange of ownership of common land. That has not been happening, and there are problems.
	As I said in Committee, some commons associations are never informed that the land over which they have common rights has been sold. In some circumstances, the new owner is unaware that any common rights are there at all. The Land Registry does not always co-operate with the commons registration authorities or the commons associations. If communications are opened up as prescribed in the amendment, we feel that many problems will be overcome.
	In Committee it was acknowledged that,
	"the system of notification is not 100 per cent effective"—
	and that,
	"the Land Registry does not always know when an application for first registration of title relates to registered common land"—[Official Report, 1/11/05; col. GC 42.].
	I shall not quote any more, but that underlines the problem. There was a commitment from the Minister to try to do something about the problem. I should like to probe the Government on what ideas they have about that and whether the amendment, as currently drafted, is helpful in that respect.
	Amendment No. 32 refers to registers being kept by the relevant commons registration authorities until they have been converted into electronic form. That is one point.
	The second point of Amendment No. 32 is:
	"The definitive copy of the electronic registers shall be kept by the relevant commons registration authority".
	It is vital that the commons registration authority can keep registers, as it operates as a reference point for all commons associations, commoners and owners in its area. People visit the commons registration authority and they communicate with it to check up on factual information. Indeed, I was recently in the commons registration authority in Powys, which keeps the records of 174 commons. A fantastic amount of useful information is held there both in files and in electronic form.
	The conversion into electronic registers could take some considerable time—that is probably an understatement. Some commons registration authorities are advanced and others are very slow, so it could take many years. Even after many years, when all the registers will have been converted into electronic form, it is still crucial that a definitive copy is available in the offices of the commons registration authority. The amendment has been put forward because of the concerns of commons registration authorities, which are anxious to have definitive copies of commons registers in their offices that are available for interested parties to examine. I beg to move.

Baroness Byford: My Lords, I shall speak to Amendment No. 33, which is grouped with this amendment and also refers to electronic registers. My amendment asks that,
	"Regulations under subsection (1) which require the keeping of electronic registers will be funded centrally".
	At government level, the computerisation of records is clearly very difficult and in many cases is disastrous. The computerisation of systems appears to be fraught with cost overruns, major errors and customer distress. I am not qualified to even hazard a guess about why that should be so, but it has been happening with sufficient regularity for me to be concerned enough to ask the Government to be required to pay the council tax payer for this service, as the commons registration officers are based in local authorities.
	A commons registration authority may decide that putting its system on the computer would be cost-effective or that some other reason, such as chronic staff shortage, dictates such a move. In that case, I should have no difficulty with the idea that it should foot the bill. However, if the Government issued instructions and then went on, as this clause allows, to specify the nuts and bolts of the methods that the authority should use, they should at least pay for the conversion costs. It is in the light of past experience of the cost of computerisation of records that I have tabled the amendment.

Baroness Farrington of Ribbleton: I begin by speaking to Amendment No. 24. We are unable to support the noble Lord's amendment. The noble Earl, Lord Peel, put it very succinctly in Grand Committee, when he said:
	"I fail to see the difference between the sale of common land and the sale of ordinary land."—[Official Report, 1/11/05; col. GC41.]
	I agree with him. The function of Her Majesty's Land Registry is to register the sale of land, not to act as an early warning system. Where someone has a legitimate interest in land, such as the interest of an estranged spouse in the matrimonial home, then it is possible to register a caution in order to receive notice of an application affecting the register—but that is not the case here. The sale of a common to another party can have no legal impact on the commoners' entitlement to exercise their common rights. The noble Lord's amendment implies that he would like the Land Registry to go further than merely giving notice; it refers to a "proposal" for a change in ownership.
	The register of title, held by the Land Registry, is open to all, so if a commons association becomes aware of a change in ownership, and is not immediately able to establish who has bought the land, it may apply to the Land Registry in writing or online for details of the new registered owner. It is a very simple process. I know that the noble Lord, Lord Livsey, has concerns about common land being bought and sold without local people being aware of what is happening, but that is a consequence of having an open market for land in this country. We are taking steps to integrate the existing statutory pre-purchase commons search system into the existing, more widely used, conveyancing search forms, and we hope that this will mean that buyers of common land are far less likely to claim ignorance of the special status of the land that they have acquired. I hope that will be of some comfort to the noble Lord.
	It will come as no surprise to the noble Lord if I say that Amendment No. 32 has precisely the same effect as Clause 1. Every registration authority is to keep the registers whether they are in paper or electronic form. Moreover, we have provided in Clause 20 for a right for the public to inspect the registers. That right will endure even where the registers have been digitised, although regulations may make specific provision as to how the right is to be exercised where the legal data are held in electronic form. For example, the regulations may provide that a person is to be able to view the data on a screen, or that a print-out must be provided of relevant extracts.
	We had a good debate in Grand Committee on Amendment No. 33 on whether the Secretary of State should have a power or a duty to make regulations under Clause 25 to enable the conversion of commons registers to an electronic form. My noble friend explained then that regulations should not be our first priority, but that we were determined to get on with the task so that registration authorities could begin to convert their registers.
	Were we to have imposed a duty on registration authorities to convert their registers, then funding for that purpose would have followed through the usual channels via the revenue support grant, which would have been a rather blunt method of targeting funding. Given our plans to roll out the implementation of Part 1 of the Bill on a regional basis, we expect that registration authorities will also wish to co-ordinate plans to digitise their registers with the regional commencement. For example, it may be sensible for an authority to undergo conversion to electronic format before embarking on the transitional period under Schedule 2, but the timing of the transitional period may vary between authorities and between regions by as much as several years. I reassure the noble Baroness that funding for this purpose, as with funding for the transitional period itself, will best be provided, at least initially, on a targeted basis. Some authorities have already made good progress in establishing electronic registers, even though those cannot at present have the same force of law as the paper registers.
	In the longer term, should we find that some authorities are being left behind in an increasingly universal era of e-government, we have conferred a power in Clause 25(1) to require authorities to keep their registers in an electronic form, and the imposition of such a duty would require commensurate funding at that stage. I hope that I have been able to answer the points raised by noble Lords on this group of amendments and they will not seek to press them.

Lord Livsey of Talgarth: My Lords, perhaps I may respond to the Minister. First, we agree with the amendment on funding, moved by the noble Baroness, Lady Byford, which is one of the resources in local authorities. I understand what the Minister has said: that if the Government say they require it, then maybe funding will follow. None the less, it is quite an upheaval for many commons registration authorities. There is a cost attached to it and there are also staff allocations within local authorities. With that in mind, some of these authorities are very sparsely peopled at the moment.
	The question of the Land Registry is raised in Amendment No. 24. I understand what the Minister is saying, particularly as regards points of law. It would be a good thing, however, if at least the common rights are universally registered with the Land Registry by the commons registration authorities. In some searches, I gather, this is not the case at the moment. If that information is with the Land Registry, at least then anybody inquiring would know that the common rights exist. So there is still a communications problem. I do not think that it should be at odds with the law of the land. It is a question of good communication. With more commons registration authorities having the electronic facility, this may improve with time. We brought up this subject again and I wanted to explore it further, and that has now been done. I am not sure whether the noble Baroness will respond to her amendment, but I suspect so. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 17 [Deregistration and exchange: orders]:

Baroness Farrington of Ribbleton: moved Amendment No. 25:
	Page 10, line 4, leave out "previously" and insert "which, immediately before the relevant date, are"

Baroness Farrington of Ribbleton: My Lords, this is a minor technical amendment to Clause 17(2)(b) to clarify that the rights of common transferring from the release land to the replacement land will be those rights registered at the date the registers are amended, not any that might "previously" have existed on the release land.
	This reflects an amendment put forward by the noble Duke, the Duke of Montrose, in Committee, which we agreed to consider. I thank him for his helpful amendment and we hope it addresses his concern. I beg to move.

The Duke of Montrose: My Lords, I am most grateful to the Minister for considering our suggestions in Grand Committee, for taking them on board to make this amendment. It is a welcome addition to the Bill, and will ensure that the reinstatement of rights to common which have been extinguished does not occur. It is an important and sensible way of avoiding any future argument about disputed or unregistered rights. I thank the Minister.

On Question, amendment agreed to.
	Clause 19 [Correction]:

Baroness Farrington of Ribbleton: moved Amendment No. 26:
	Page 12, line 6, leave out "fair" and insert "just"

Baroness Farrington of Ribbleton: My Lords, Amendment No. 26, in Clause 19(7), enables application to the High Court to rectify an entry in the register where that entry has been procured by fraud, and it would be "fair" to make the rectification. Government Amendment No. 26 provides instead that the rectification should be made only if it would be "just" to do so.
	Our Amendment No. 27 responds to one spoken to in Grand Committee by my noble friend Lord Williams of Elvel. He questioned whether the use of the word "fair" in subsection (7) is entirely apt. There was perhaps some concern that the test of whether an amendment was fair would be a difficult call, although I believe that my noble friend was also concerned that the court could seek to interfere in a decision made in good faith by the registration authority.
	On the latter point, I hope I can set my noble friend's mind at rest: an application can be made under subsection (7) only where fraud is proven, and that will be a very difficult thing to prove. We believe it unlikely that many, if any, applications will come forward under this provision, but conclude that some protection is necessary if cases of fraud do arise. Even if fraud is proven, my noble friend was good enough to acknowledge in Grand Committee that the court should have some discretion as to whether an amendment is made.
	Our amendment will provide that should the court be satisfied that it would be "just" to make the amendment it could do so. That is the language used in an almost identical provision in Section 14 of the Commons Registration Act 1965. I hope that the noble Lords will agree that the provision in the 1965 Act has stood the test of time, and that it would be sensible to use the same form of words here. I beg to move.

The Duke of Montrose: My Lords, I thank the Minister for moving this amendment. It is a sensible redrafting of the word "fair" which makes the amendment of the register subject to justice, which may be asserted through the usual channels, rather than fairness. Fairness always raises the question of fair to whom. All sorts of people might demand corrections because they maintain it was not fair to them—this will rule out that possibility. So I thank the Government for taking on board the gist of our Amendment No. 82 in Grand Committee. On Amendment No. 27, I also thank the Minister for making the appropriate change to the Bill following Grand Committee.

On Question, amendment agreed to.
	Clause 21 [Official copies]:

Baroness Farrington of Ribbleton: moved Amendment No. 27:
	Page 12, line 29, leave out subsection (2).
	On Question, amendment agreed to.
	Clause 22 [Rectification of mistakes etc under the 1965 Act]:

Baroness Byford: moved Amendment No. 28:
	Page 13, line 4, at end insert—
	(2) The rectification of mistakes under Schedule 1 must be completed by 28th June 2015."

Baroness Byford: My Lords, I rise to move Amendment No. 28 and to speak to Amendments Nos. 30 and 80. These deal with the rectification of mistakes under Schedule 1, which we believe should be time-limited to get them corrected. In Amendment No. 28, we ask that the date should be by 28 June 2015, which would be the completion of the Act. Amendment No. 30 proposes a date three years earlier, which would cover the transitional period. These applications for rights of way—byways and byways open to all traffic, and so on—have, in many counties, formed a sizeable backlog, as the Minister will know with regard to the NERC Bill. Each one has to be investigated and proved before it may be added to a definitive map. The problem is particularly acute in many towns and cities where there was no definitive map already in existence, so the process has had to start from the beginning. Had there been a shorter cut-off date imposed from the beginning, there would have been fewer applications and the backlog would have been smaller.
	The particular problems surrounding mechanically propelled vehicles on byways open to all traffic have caused a special government inquiry and the imposition of an earlier than planned closure date. We do not feel that commons registration authorities, who are after all basically the same officials, should face similar problems as small armies of dedicated people search through parish and town records to unearth anything that could be quoted as evidence of previous use of land by the general public. Nor should there be any way in which they can be sued for running out of time to handle applications. Furthermore, those with an interest in open land should not have the possibility of such applications hanging over their heads for years ahead. Those are the reasons for the amendments. I beg to move.

Baroness Miller of Chilthorne Domer: moved, as an amendment to Amendment No. 28, Amendment No. 29:
	Line 2, leave out "rectification" and insert "registration"

Baroness Miller of Chilthorne Domer: My Lords, although 10 years may seem a long time for the mistakes to be rectified, it is a short time, as we know from the sort of time scale needed for finding out the exact mistakes, tracing them back and getting to the point of rectifying them. We accept that it may be some use to have some form of time limit, and our amendment seeks to say that the registration of those mistakes must have happened by 2015, and that the rectification could occur thereafter. It is a fairly straightforward amendment that simply seeks to recognise that the time needed for such work to be undertaken satisfactorily—and often voluntarily, as the noble Baroness said—should be as generous as possible while still allowing a cut-off date in the end, so that it does not drag on in perpetuity. I beg to move.

Lord Greaves: My Lords, I do not suppose that I am the only person to have had a briefing from the RSPB about the registration dates and transitional periods. There are questions to which it would be helpful to have answers from the Minister. The RSPB's concern is that, unless there are cut-off dates by which the registers can be brought up to date, it will not be possible to initiate the formation of statutory commons associations, so commoners will continue to find it difficult to access agri-environment payments. That was an issue that I had not understood or heard discussed previously, and it would be useful for the Minister to indicate whether that is the case. When we discussed it previously, I was not of the opinion that setting up commons associations could not proceed fairly quickly from the passing of the Bill, and that it had to wait until the transition period of updating the registers was completed. The RSPB is under the impression that that would be the case, which would put a new complexion on the way in which the Bill is brought into operation. It would be helpful if the Minister could tell us that the RSPB is wrong; if it is not, we have some more work to do.

Lord Bach: My Lords, Amendment No. 28 would require the transitional period for correcting mistakes in the registers under Schedule 1 to be concluded by 28 June 2015. Amendment No. 30 would require the registers to be reviewed and brought up to date in Schedule 2 by requiring that the transitional period be concluded by 28 June 2012. In between them comes Amendment No. 29, which agrees with the same date as Amendment No. 28, but talks about registration rather than rectification.
	The amendments address a very important issue around when the registers are deemed to be final. Having a finite time to correct errors and bring the registers up to date is a principle we agree on. We agree that once a cut-off date has been set, and once that date has passed, the registers should become final and conclusive. If that date is missed, it is too late. But before we embark on setting a date in stone for updating the registers, it is important to properly understand the complexities of the problem. Experience has shown that there are differing standards across England and Wales in the maintenance of registers since their inception in the late 1960s. In some areas, such as Powys, the local authority has expended considerable effort in doing what it can within the limits of the 1965 Act to update its registers. In other areas, it is frankly not so good. In 1986, some analysis was carried out by the Common Land Forum to measure the extent of the problem, but even back then the task was daunting and it came no closer to understanding the problem than we are now.
	So that we do not make the same mistakes made after the 1965 Act came into force, initial implementation will be carried out as a targeted pilot programme, as I said in Committee. We wish initially to focus on those areas where there are significant tracts of common land—for example, that might mean in Cumbria and Devon. We will learn from what works well and what does not, and then set about a phased implementation for the remaining registers. We do not know how long that will take, and imposing an artificial deadline is perhaps not the wisest course. I remind the House that we are talking about public money, and obviously the whole House will wish to spend that wisely.
	Having taken an initial look at the degree of problems facing registration authorities, we think that around three years for the transitional period to update the registers in each local authority is about right, but we are conscious that that may be too ambitious for those areas where the problems are greatest. If we seek to tackle all 156 authorities at once, we run a serious risk of getting it wrong. We wish to work with the Local Government Association and individual registration authorities to come to a mutually agreeable timetable for implementation—a timetable based on the real extent of the problem, and not some vast unknown. I am sure that the National Assembly will also wish to agree an implementation timetable with Welsh local authorities and the Welsh Local Government Association that is appropriate to Welsh conditions.
	The amendments may have unintended side effects. For example, setting a definitive date such as that proposed by Amendment No. 30 will mean that any outstanding application at 30 June 2012 will no longer be able to be considered, no matter how worthy. That is because Schedule 2 will cease to exist at that date and all outstanding applications will fail.
	I shall say a few additional words about Amendment No. 28. Schedule 1 differs from Schedule 2 in that applications will be made at the volition of applicants, rather than in response to a predetermined timetable imposed by regulations and the registration authority. Those will be applications to correct certain substantive mistakes in the registers, which have caused land to be missed out or wrongly included. Experience shows that people with an interest in such matters—they may, for example, be house owners not even yet aware that their garden has become registered as part of the village green—are slow to come forward. Many people missed a one-off opportunity to seek the deregistration of houses and dwellings under the time-limited Common Land (Rectification of Registers) Act 1989. We must make sure that this final opportunity to put things right is not overlooked in the same way.
	At present, the Bill gives us power to be flexible about the closing date for applications in any particular area, but Amendment No. 28 would impose an arbitrary deadline. It would mean, for example, that no further applications could be made after that date to add land to the register which was wrongly excluded in the 1965 Act, whatever the merits, because local people had not got round to making an application by that date. We have allowed 25 years, with a power to extend to 30 years, for making the definitive map of rights of way truly definitive under CROW, and it would be wrong and a bit short-sighted to impose a shorter deadline on Schedule 1.
	Amendment No. 29 seeks to ensure registration by the proposed cut-off date. Unfortunately, the arguments that I have tried to employ on Amendment No. 28 are appropriate, so Amendment No. 29 would be no more helpful. We do not expect a particularly long delay between application and determination, so we believe that the amendment would not make much difference.
	The noble Lord, Lord Greaves, asked why the RSPB is wrong with regard to commons associations. We believe that there is no reason why commons associations cannot be established before Part 1 commences.
	The noble Baroness, Lady Byford, spoke to Amendment No. 80. We think that the amendment would be relevant where, for example, application had been made during the transitional period to register a right of common which had been created but not registered since 1970, the authority had failed to determine the application and paragraph 3 had the effect of causing the right to be extinguished. But there are two reasons why we do not think that the amendment is necessary .
	First, the registration authority is under a duty to discharge its obligations under Part 1, including Schedule 2. If the registration authority fails to deal with an application, it is only right that the consequences of its failure might give rise to certain liabilities towards the person affected. We believe that it would be inappropriate for the authority to be absolved of liability so that a person suffering loss from such a mistake would have no redress.
	Secondly, paragraph 4 makes provision for regulations to enable the authority to make an amendment to the register after the close of the transitional period in consequence of a qualifying event. We envisage that regulations will require such an amendment only where it would be reasonable to give effect to it. So, if the amendment should have been made during the transitional period, a third party has relied on the fact that no amendment was made in time and a late amendment would cause real loss to the third party, then regulations may well provide that the amendment should not be made out of time. In principle, even if an amendment is overlooked during the transitional period, it may still be possible to deal with it later. That is why we do not think that it would be appropriate to protect a registration authority from the consequences of its failure to discharge its duty, and therefore, when we reach the amendment, we will ask the noble Baroness not to press it.

Baroness Byford: My Lords, before the noble Lord sits down, I think that he was a little confused in his answer on Amendment No. 29 moved by the noble Baroness, Lady Miller—or perhaps it was me who was confused. As I read it, she is seeking only to leave out the word "rectification" and insert "registration". I want that point to be clarified because her amendment will be dealt with before mine.

Baroness Miller of Chilthorne Domer: My Lords, it may be helpful if I confirm that that is my intention with the amendment.

Lord Greaves: My Lords, before the noble Lord technically sits down, in replying to my question on behalf of the RSPB, he said that it would be possible for commons associations to come into being before Part 1 commences. I did not quite understand that. Did he really mean before Part 1 commences or did he mean before the transitional provisions on registration are all completed?

Lord Bach: My Lords, I meant what I said. There is no reason why commons associations cannot be established before Part 1 commences.

Lord Greaves: My Lords, perhaps I may be tedious and ask another question before the noble Lord sits down again. Am I right in thinking that it will not be many years before Part 1 commences?

Lord Bach: My Lords, indeed not. I do not know how long after the Bill is enacted Part 1 will commence, but we hope that it will commence at a fairly early stage.

Baroness Byford: My Lords, I thank the Minister for his comments on my Amendments Nos. 28, 30 and 80, and I thank the noble Lord, Lord Greaves, for raising an important point, of which he also made us aware. He spoke particularly of his desire, and ours, that there should be a cut-off date. However, the Minister did not answer the question. Will commoners be able to enter agri-environment schemes if the registration authorities have not registered them, or will they bypass the system? What will happen? I thought that the whole idea was that the new agri-environment schemes would kick in straight away because payments are being altered straight away. Surely commoners cannot be without income for that length of time.
	With regard to my Amendment No. 80, the Minister also said that there are differing standards. Obviously some areas have been better than others at dealing with the applications, and there is a backlog. The whole thrust behind including timescales is to encourage local authorities to get on with the job. I know that the authorities are going to set up a trial area but is the Minister not concerned that, if there is no cut-off date, there is nothing in the Bill to encourage them to undertake this work as soon as possible? Surely that is what we are after with this legislation. I do not know whether the Minister wishes to add anything more to that point at this stage.
	When the Minister referred to Amendment No. 80, he said that regulations could apply later. Will those be regulations about which we have no say or is he referring to regulations that are already written into the Bill? I hope that the noble Lord can clarify the situation with regard to agri-environment schemes and one or two other points. As this is not Committee stage, it is difficult to ask these questions, but I do not know how else we can proceed.

Lord Bach: My Lords, it may be appropriate for me to write to the noble Baroness on that point.

Baroness Byford: My Lords, I thank the Minister.

Baroness Miller of Chilthorne Domer: My Lords, on the basis that the Minister will helpfully write to us to clarify the position, I beg leave to withdraw the amendment.

Amendment No. 29, as an amendment to Amendment No. 28, by leave, withdrawn.

Baroness Byford: My Lords, I beg leave to withdraw the amendment.

Amendment No. 28, by leave, withdrawn.
	Clause 23 [Transitional]:
	[Amendment No. 30 not moved.]
	Clause 24 [Applications etc]:

Lord Greaves: moved Amendment No. 31:
	Page 14, line 23, after "authority" insert "in relation to such an application or proposal"

Lord Greaves: My Lords, this amendment refers to Clause 24(6) and to an issue on which we had some discussion in Grand Committee. It concerns the extent to which regulations under this clause can make provision for the appointment of someone else to have the powers held by commons registration authorities—that is, county councils and other local authorities. My concern in Grand Committee was that the Bill as it stands suggests that the regulations can include,
	"provision for the appropriate national authority to appoint a person to discharge functions of a commons registration authority",
	who could effectively take over that function from the local authority.
	Following Grand Committee, the Minister offered to write to noble Lords. The letter, dated 31 October, was very satisfactory. It reads:
	"Clause 23 does enable regulations to provide for the appointment of a person to fulfil some or all of the functions of the commons registration authority in relation to an application or proposal in all or particular cases . . . The power cannot be used to remove the function of commons registration itself from local authorities".
	The letter goes on to detail many instances in which it might be sensible, such as where an authority has an interest in the outcome, where there are particularly difficult questions of law or fact, or highly complex applications that authorities would not feel that they were capable of dealing with but that might be handed to inspectors in the absence of the commissioners, who my noble friend would like to return.
	What the Government have told us in correspondence is very satisfactory. The reason for tabling this further amendment is that it clarifies the position by making subsection (6) as it stands refer to such an application or proposal, to which reference is made earlier in the subsection, rather than it just being a general statement that the authority can take over functions and discharge functions. Nevertheless, it seemed that it would be helpful to table the amendment so that the Minister could make some of the points in the House that he has made in correspondence and so that the matter is on the record in Hansard, which is a slightly greater authority than private letters, helpful though they are. That is the reason for tabling the amendment. I beg to move.

Baroness Farrington of Ribbleton: My Lords, I am able to do exactly what the noble Lord, Lord Greaves, wishes. Amendment No. 31 seeks to clarify that the power of the national authority to appoint a person to discharge the functions of the commons registration authority would relate only to that authority's functions in relation to determining an application or proposal. The powers in Clause 24 relate to applications and proposals under Part 1. Subsection (1) provides for regulations about any application for the amendment of a register for the purposes of this part. Subsection (6) refers to provision for the appointment of a person to discharge any or all of the functions of the commons registration authority in relation to an application or proposal.
	Despite the misgivings raised by the noble Lord in Committee about the powers available to a national authority under subsection (6), those powers are strictly limited to the provision in relation to applications and proposals under Part 1. It may help if I clarify that proposals here refer to quasi applications that are put forward by the registration authority itself under Clause 19(4)(a) or paragraph 2(5)(b) of Schedule 2. So under the Bill it is not possible for the national authority to remove or transfer the duty of a registration authority to keep and maintain the registers under Clause 1. I hope that this unequivocal assurance and placing it firmly on the record will satisfy the noble Lord, Lord Greaves.

Lord Greaves: My Lords, I am very grateful to the Minister for putting the matter on the record. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 25 [Electronic registers]:
	[Amendment No. 32 not moved.]

Baroness Byford: moved Amendment No. 33:
	Page 14, line 42, at end insert—
	"( ) Regulations under subsection (1) which require the keeping of electronic registers will be funded centrally."

Baroness Byford: My Lords, I spoke to this amendment earlier. I listened very carefully to what the Minister said. As far as I am aware, there is nothing on the face of the Bill that defines that the funding will go to local authorities. Therefore, I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 33) shall be agreed to?
	Their Lordships divided: Contents, 88; Not-Contents, 128

Resolved in the negative, and amendment disagreed to accordingly.
	Clause 27 [Procedure for establishment]:

The Duke of Montrose: moved Amendment No. 34:
	Page 15, line 29, leave out "substantial support" and insert "majority support among the relevant local councillors"

The Duke of Montrose: My Lords, the noble Lord, Lord Bach, responded to our attempt in Committee to replace this term. I owe the Minister an apology. I was around on Thursday and then I left at 6.30 on Friday morning and my box was not open. I therefore did not see his letter in which he explained at great length some of his views on this question of majorities and non-majorities. We have therefore tabled this amendment which concerns how the consideration should be weighed.
	In Committee the Minister attempted to replace "substantial" with "majority" by saying several things, among which was:
	"Making registration dependent on a majority . . . would be unduly restrictive and would set a burden of proof that would be impossible to satisfy in practice".—[Official Report, 14/11/05; col. GC8.]
	In response I said that the narrowing of the support criteria to take account only of those entitled to rights of common does not reflect the broader interest in most commons. We still feel that the demonstration of substantial support for the creation of a commons association will be an uncertain thing in some circumstances, particularly where a local inquiry has been held. Any national authority decision to hold an inquiry will itself point to considerable argument and unrest in the area. It may well be that in a few cases opinions will continue to be divided.
	Having regard to the burden of proof point made by the Minister, we felt that a vote taken at a meeting of whichever council covers the proposed common would settle the matter transparently. All shades of opinion could be expressed to the councillors who, being local, would be in a much better position to decide how much support there really was. I beg to move.

Lord Livsey of Talgarth: My Lords, it would seem that majority support among the councillors would reflect the democratic decision. Rather than the word "substantial" it seems to us that this amendment is eliciting a principle which ought to be pursued. It will be interesting to hear the Minister's response.

Lord Bach: My Lords, I shall respond as briefly as I can. This is an important topic and it has arisen in a number of ways during the course of proceedings on the Bill—at Second Reading and in Committee too. Clause 27 sets out the procedure for establishment of a commons association. It requires the national authority to be satisfied that there is substantial support for making an order, while having particular regard to representations from three categories of persons: first, landowners and others who have a legal interest in the common; secondly, common rights holders; and thirdly, persons with statutory functions relating to the maintenance or management of the common. These are all persons with a direct interest in the common, either through ownership, a property right, or statutory functions relating to the land. We do not think local authority support is required as they do not have rights in the land, nor the necessary level of interest in the land necessarily for their concerns to be given particular priority.
	We have received consistent support for our approach to the procedure for establishment of an association from a wide range of interests. I know that the House will forgive me if I quote from the recent National Farmers Union parliamentary briefing, which I am sure has wide circulation. The briefing states:
	"The minister can hear any representations on the subject, including the views of local councillors, but—in our view rightly—is obliged to have particular regard under subsection (5) to those with an interest in the land, to those who have rights of common, and to persons who have statutory functions concerned with the maintenance and management of the land. We are content that as drafted the Bill strikes the correct balance".
	It appears that the support we have for our approach to establishing a commons association—as set out in Clause 27—is both substantial and powerful. That does not mean to say that we are right, but it is substantial and powerful.
	Noble Lords will be surprised to hear that we agree with the NFU here. There is nothing to prevent local authorities making representations about a draft order, but we do not believe their majority support should be the determining factor in deciding whether an association should be established. Local councillors are unlikely to have rights in the common and their knowledge and understanding of commons management may be low—certainly when I was a local authority councillor my knowledge and understanding of commons management was very low indeed. I hope that it is slightly different now, but I am not sure. This amendment would effectively remove the most important people from the decision making procedure—those with a direct interest in terms of rights or ownership. These are the interests that will operate the association.
	Majority support from local councillors might appear a good way of ensuring a democratic decision but such support will be worthless if the owner and the common right holders are not supportive.
	There may be situations where local authorities have a real interest in a common; for example, they may undertake management activities on an unclaimed common or be involved in a scheme of management under the Commons Act 1899. In such a situation, the views of a local authority would undoubtedly be given particular weight. But, even here, management of the common will require more than the support of local councillors. Reliance on majority support from one body of persons would not be enough to guarantee the effectiveness of the association where there are a number of different interests.
	We are aware that measuring the level of support for the establishment of a commons association will sometimes not be an easy task. Ensuring that there is majority support—which implies an objective, measurable test of support—will be almost impossible because rights in common land vary in value and nature, and are shared between different users. Each common will have a unique set of active users and inactive or dormant holders of rights. When considering the establishment of a commons association, a series of questions must be answered: for example, who in the local area should be involved in deciding whether a commons association is to be established?
	To some extent, the functions to be given to the commons association may determine how some of those questions are answered. We could say, on a common that is agriculturally active, that only active graziers should be involved in deciding whether to establish an association and support measured through a majority vote. But that would remove any representation from the owner or other legal interests who share the common and it is seldom straightforward to differentiate between active and inactive users of a common. I could give further examples but I do not think that I need to.
	There are other important interests in a common, such as the owner, whose views may be overridden if some measure of majority support is used to establish an association. Even if the owner is agriculturally active, with a high level of interest in managing the common, he could always be outnumbered by those holding common rights. In another situation, the owner may actively oppose the formation of an association despite overwhelming support from the rights holders. The views of the owner and other minority interests could be lost if the criteria for deciding whether to establish an association is based on the concept of majority support from any particular category of interest in a common. What is required is a judgment, a weighing of the facts in each individual case—an examination of which interests support the establishment of an association, what functions they want to give that body, which interests oppose establishment and why.
	We should not expect overwhelming support for a commons association as there will always be those who oppose such a body—those who believe that they gain from having an unconstrained "freedom in the commons" to do as they like. We should expect to create associations in the face of some opposition. This is why we have decided that the criterion for establishing an association should be "substantial support". The implication of using that term is that the support is more than sufficient to do the job. It is existing, not illusory, support. It is not a bare majority, but it does not have to be total or overwhelming support; it allows for some opposition to occur. It allows the strength of arguments to be gauged, both in support and in opposition to an association. Such evidence can then be used in the decision or used to modify the draft establishment order in some way.
	I was going to finish by quoting the National Farmers' Union, but I shall not.

Baroness Miller of Chilthorne Domer: My Lords, do I recall correctly that the establishment of a commons association will cost between £10,000 and £150,000? My guess is that commoners who wish to form an association will go in short order to their local authority with at least a request for help with funding, if not an expectation that it will provide most of the funding, unless the Government have another scheme to provide the money. Unless there is majority support from local councillors, the association will not be established because it will not be funded.

Lord Bach: My Lords, the noble Baroness makes a very interesting point. Sometimes local authorities may assist but I do not think that they are bound to give money. Other money may be forthcoming. The RIA figures that she gave are correct but are based on Dartmoor and other existing associations. The noble Baroness will not be surprised to hear that our own view is that they are an overestimate in some cases. If local authorities are involved to the extent of having to pay some money—who knows whether they will be prepared to?—someone in the authority will have to take a decision about that. I doubt whether these days the full council would take that decision, but if it does, the noble Duke's amendment is not necessary.

Earl Peel: My Lords, further to the noble Baroness's important point about funding, I suspect that in most cases the formation of a commons association will be for the purpose of entering into an agri-environment scheme. That being the case, presumably the payment for the formation of a commons association to take part in that agri-environment scheme may be part of the funding of that scheme. Can the Minister confirm that?

Lord Bach: My Lords, in writing to the noble Baroness about agri-environment schemes generally, I may be able also to answer that important question. One potential funding source for the establishment of associations is our old friend Natural England. It may be part of its purpose to assist the setting up of associations. Those who partake in agri-environment schemes normally see the benefits further down the line. Whether some of the benefit could be at an earlier stage in setting up the association itself is an interesting and serious question which I will respond to in my letter.

The Duke of Montrose: My Lords, I am grateful to all those who have participated in this interesting exchange. We have explored areas in which councillors might have an interest that we had not even thought of when we started this exercise. Bodies such as rural development organisations might also be tapped for funding if assistance were needed. It is a frightening thought that the cost might be up to £100,000, which is a very substantial sum for setting up any organisation. I take my hat off to the Government because, practically without blinking, the Minister said that it was almost an impossible task, yet they are setting out to make this great judgment on each association as it comes along.
	We are grateful that the Minister has put some of the case history on the record because in his letter he went into many more scenarios of what might need to be weighed up in considering what would produce a suitable majority. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 28 [Status]:

Lord Greaves: moved Amendment No. 35:
	Page 16, line 7, leave out "not"

Lord Greaves: My Lords, the amendment probes a matter that I was surprised we did not discuss in more detail in Grand Committee. In all the excitement about how commons associations will be set up, run and financed, we missed it. It is the question of the relationship between commons associations and SSSIs, and the position on the commons in relation to SSSIs. The position at the moment is that in England about half the SSSIs on commons—which are a high proportion of SSSIs in the country—are not in a favourable condition, and it is thought that the position may be much worse in Wales. Section 28G bodies under the Wildlife and Countryside Act 1981, as amended, have a duty to further the conservation enhancement of the flora and fauna on SSSIs. The Bill states that commons associations are not Section 28G bodies on the grounds that such status might be a burden and could discourage the setting up of commons associations. That may well be true but, no doubt, there are also other things that might discourage them.
	The purpose of moving the amendment is to ask the Government how they see the future management of SSSIs on commons. What processes will take place that will result in the 50 per cent figure being reduced to something much more reasonable and the Government meeting their own targets on bringing SSSIs into good condition? In particular, if commons associations are not to be Section 28G authorities, what is their role and how will they be involved? If a site is designated as an SSSI because of its vegetation, it is difficult to see that the body that is tasked with managing the vegetation does not have a substantial role to play in enhancing and maintaining the ecological conservation status of the SSSI. My noble friend Lord Livsey will speak to the other amendment in this group. I beg to move.

Lord Livsey of Talgarth: My Lords, Amendment No. 36 addresses the question of the management of a common, because decisions are not always taken within the commons association, but may be taken outside it for various reasons. The purpose of the amendment is to give the commons association the right to be consulted about the management of the common. When public and other bodies are making plans and taking decisions that could have a serious impact on the management of the common, commons associations should not be ignored. For example, such plans could be for the reduction of stocking rates on the common, or an increase in them, which is something that we may see in the future, or the placing of gates on public highways. Decisions on issues of this kind are sometimes taken outwith the commons associations. Or, for example, an argument might be ensuing from an environmental point of view about the best process to manage the common. Whatever the issues of that kind, commons associations must have the right to be consulted when decisions that impact upon them and their members are being made.

The Duke of Montrose: My Lords, I am glad to support the amendment tabled by the noble Lord, Lord Greaves. I shall be interested to hear what the Minister has to say.

Baroness Miller of Chilthorne Domer: My Lords, I wish to return briefly to a subject that I raised in Committee. I was not happy with the Government's reply. It is the matter of the ability of commons associations to be consulted on all matters to do with flooding, flood defences, sea incursion and managed retreat. These issues will become very real for commons in marine areas, and we did not dwell on them in Committee. Commons associations will have an enormous interest because if a decision goes one way, they stand to lose all their rights because the commons will be under water. Therefore, they should have a very strong right to be consulted.

Lord Bach: My Lords, commons associations are to be established primarily to improve the management of agricultural activities and vegetation on common land. A commons association will be made up of those with rights or other interests in the common who will volunteer their time to ensure the association operates effectively. Those people who will be out on the common, day in, day out, are not paid employees of any organisation, but commoners exercising their rights and owners managing their land. So having an association as a Section 28G body would place a significant new burden on such persons. In their daily activities, where commons have been designated as SSSIs, they would have to,
	"further the conservation and enhancement of the flora, fauna or geological or physiographical features",
	of the land, with no compensation for the added time, effort and expense of doing so.
	Section 28G bodies are not eligible for agri-environment funding. Such funding is available only to bodies that are not already required to carry out the activities for which an agri-environment grant is payable. To put it perhaps more simply, if a commons association was a Section 28G body, it would have no entitlement to agri-environment funding.
	I know that this is a probing amendment, but if it were agreed to, we believe that no commons associations would be formed where common land is designated as a site of special scientific interest. That would be a great shame. One of the driving forces to establish an association will be to make it easier for those concerned to agree a long-term funding package to secure better management on a common. If this amendment were to be agreed to, it would seriously compromise our ability to assist in bringing SSSIs on common land into favourable condition in order to meet our PSA target for such sites.
	We do not think giving commons associations the status of a Section 28G body would help to improve the nature conservation value of designated common land. Ironically, it is likely to have the opposite effect, and result in the unfavourable condition of SSSIs on common land continuing.
	Regarding Amendment No. 36, spoken to by the noble Lord, Lord Livsey, commons associations will be given a limited range of functions related to the management of common rights, vegetation and agricultural activities. They will not be expected to manage the numerous other activities that might take place on common land, such as recreational activities or organised events. Associations will largely be made up of local graziers, owners and other interests with a limited range of skills and expertise. They will often not be in a position to provide the level of advice needed to fulfil the role of a statutory consultee.
	A matter that affects the management of a common could cover an enormous variety of activities, from the trivial to the significant. It would be difficult for the members of an association to prepare reasoned arguments for all matters that might affect a common in some way, especially if its functions are related only to management of agricultural activities.
	It is not clear what the significance of any response from an association might be. Without some indication of the weight to be attached to such a response, an association is unlikely to act, even if given the status. In most cases where an activity might significantly affect the management of a common—for example, the siting of wind turbines—it is inconceivable that a commons association would not be asked for its views. In such a situation, there is also likely to be an environmental impact assessment or a public inquiry at which an association's views could be heard.
	While we see commons associations as becoming a more powerful voice for commons, we do not see the need for making them a statutory consultee and giving them equal weighting. That will only increase the administrative burdens of the association, will not assist in improving the management of a common and will not be a true voice of all interests. We want to avoid that. The noble Baroness, Lady Miller, asked about marine matters and flooding. In practice, commons associations will of course be consulted. We may not have answered all of the concerns raised by the noble Baroness in Grand Committee. If that is so, we will write with a fuller explanation of our position.

Baroness Miller of Chilthorne Domer: My Lords, I should like to clarify why I am so concerned about commons associations' rights to be consulted on issues concerning flood defence in respect of the sea. They will have no rights to be a commons association if a decision is taken not to maintain those flood defences. That might be a right decision, but they have every right to be consulted about that decision, which is a right that should be in the Bill.

Lord Bach: My Lords, certainly, in that situation, I agree that they would have every right to be consulted. Whether that means that they have to be a statutory consultee in the sense implied in the amendment moved by the noble Baroness's noble friend, I am more doubtful.

Lord Greaves: My Lords, before the Minister sits down and before I reply, perhaps I may beg the patience of the House to ask whether he could answer my second question. The Minister satisfactorily rubbished the amendment that I moved for good reasons, which I accept because it was a probing amendment. But how does he see the condition of SSSIs on commons being significantly improved? What is the role of the commons association where there is one within that process?

Lord Bach: My Lords, that is an important question, which I do not want to speak back on without any thought. If the noble Lord accepts, I will write to him setting out our views about the relationship between commons associations and SSSIs. As we know, there are a very large number of SSSIs on common land.

Lord Greaves: My Lords, I accept that. I thank the Minister for the excellent, detailed and informative letters that we have received since Grand Committee. It would be very helpful if the Minister could write before Third Reading because we might want to put down the odd teasing amendment. As yet, I do not know—I do not know whether anyone knows—when Third Reading will be. When I moved the amendment, I referred to the official record which shows that we did not discuss SSSIs very much in Grand Committee. I had intended to thank, because no one has, whoever—I gather that it was the Clerks—was responsible for this excellent special edition of Hansard, which includes all the Grand Committee debates on this Bill. It was wonderful. I do not know who was responsible but perhaps my thanks—and, I am sure, those of other Members of the House—will be passed on. I am not sure whether we will keep it on our shelves for the next 40 years until the next commons Bill, but it is has been extremely helpful and useful.
	I did not have a chance to speak to my noble friend's amendment. I thought that the Minister's response was not up to the standard that we have received from Ministers during the passage of this Bill. I thought that it was nonsense. He suggested that commons associations would not have the expertise of statutory consultees: for example, in planning applications parish councils are statutory consultees. Some of them have tremendous expertise and some have none whatever, but they are able, very often, to give their views. The idea that all statutory consultees have equal weighting or that someone cannot be asked for his or her opinion because you do not know what weighting you will give to the reply when you get it, is not very logical.
	The Minister mentioned the wind turbine. It is inconceivable that the commons association would not be asked for its views. But a wind turbine would need a planning application and the list of statutory consultees on planning applications is written down. In many cases, it would not be directly asked for its views. It might decide to give them because a notice was put up on the common for anyone to put in his or her views, but it would not be a statutory consultee and would not necessarily be written to specifically by the planning authority. It may be that my noble friend's amendment was a bit wide ranging, but it needs to be looked at.

Lord Livsey of Talgarth: My Lords, perhaps I may interrupt here.

Lord Greaves: My Lords, we have been doing quite well today.

Lord Livsey of Talgarth: My Lords, my noble friend Lady Miller mentioned flooding. Other noble Lords have mentioned 40 years. I should like the Minister to think about the impact of global warming in 40 years' time.

Baroness Farrington of Ribbleton: My Lords, the Minister has sat down. He has spoken. The mover of the amendment may speak. I am being as flexible as I possibly can, but I am being stretched beyond toleration point.

Lord Greaves: My Lords, that is for us to decide, of course. Perhaps we are all being stretched. I was a little surprised. Without further ado, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 36 not moved.]
	Clause 30 [Constitution: supplementary]:

Baroness Byford: moved Amendment No. 37:
	Page 17, line 1, leave out "members" and insert "officers"

Baroness Byford: My Lords, I understand that the Government may be considering Amendment No. 37 but it is important that I set out the background for it. There are some very real issues that I had not appreciated in Committee. In our earlier consideration of this Bill, the Minister promised to consider issuing some draft statutory instruments, which we received. But, so far, we obviously have not discussed them. The standard constitution defines a commoner as,
	"a person entitled to exercise a right of common over any land in respect of which a commons association is established".
	A member is defined as a person,
	"standing elected, appointed or co-opted",
	to an association. An association may levy subscriptions on, or demand contributions from, commoners.
	The second statutory instrument enables a mythical association and, among other edicts, states:
	"The Association shall consist of not less than ten and not more than twelve members".
	The first members shall be appointed using the good offices of the returning officer appointed by the Secretary of State.
	I am concerned at the intentions revealed by these documents. While I know that they are in draft, the standard terms will have to be accepted by both Houses before they can become law and those applying to individual associations will be governed by the negative procedure. I am, however, doubtful about the following points and would be grateful for clarification; first, the desirability of depriving commoners of their title unless their common has an association. The third-day debate in Committee elicited from the Minister that the Government have no set ideas on how many commons associations will be in existence five years from the passing of this Bill, nor of the proportion of commons that will be covered by the associations, as set out at col. GC 92 of the Official Report on 2 November 2005. Clearly, after the passing of the Bill, commoners who do not belong to a statutory association will be commoners no longer.
	Secondly, I doubt the wisdom of charging a subscription and then denying a membership. Will the Minister explain the thinking that lies behind this draft rule? I nearly said "daft rule", but I mean "draft". Will he or she—I am not sure who the Minister is—comment on the implication that, if there are only 10 to 12 members and they run the association, they will not be accountable to anyone?
	I wish to bring to the attention of the House a little problem that I have with this Bill and the draft statutory instruments. The Bill allows for a commons association to be established by order. Does this mean that a currently established association will automatically receive an order without having to go through the procedure under Clause 27? Clause 27(2) says "must".
	The standard terms define a commoner as someone "affiliated" to a statutory association. What are commoners who have no such group? The test statutory instrument defines, in effect, a "member" as one of a select band. The Bill and the statutory instrument make it crystal clear that the commons associations will be able to charge fees, subscriptions and whatever you will on commoners who will not, however, be members.
	Clause 37 allows for the national authority to deem an association ineffective and to allow the,
	"transfer of rights, property and liabilities"
	to Natural England or the CCW. Does that mean that the commoners who are not members of an association will have to pay fees to exercise their rights of common, and may face losing those rights to Natural England?
	The more I look at this, the more worried I get. Thus I wanted to fully explain to the Minister some of the concerns that we have with this provision. I beg to move.

Baroness Miller of Chilthorne Domer: My Lords, I am grateful to the noble Baroness, Lady Byford, for giving me the opportunity to question the provisions under this clause again. Briefly, I think we were probably carried away in Committee by the niceness of having something on paper as to what the draft statutory instruments would look like. I went back and reread the comments of the Delegated Powers and Regulatory Reform Committee on the establishment of commons associations, particularly their constitution and administration, and its suggestion that these should appear on the face of the Bill. It underlined that if they cannot, the Bill must include the provision that the regulations shall be subject to the affirmative procedure. I wondered whether the Government had indeed read those comments. If so, what was their response?

Baroness Farrington of Ribbleton: My Lords, I will reply to the specific amendment and what it does. The word "members" is a reference to those persons who are elected to the governing body of an association. A commons association is a little bit like a local authority where the local people elect representatives to the governing body of the authority and then effectively agree to abide by the decisions of that body. The majority of those participating in a commons association will appoint persons to a governing body or management board to represent their interests and make rules which will be binding on all those using the commons.
	We have not used the word "officers" to refer to those appointed to the governing body of a commons association, as use of this word has been reserved for those who have particular roles given to them in relation to the governing body, such as the treasurer, secretary or chairman. Paragraph 10 of the draft standard constitution, which we provided to Peers this autumn, makes provision for the appointment of such officers.
	Those who are entitled to appoint the members of an association will be identified in the establishment order. They are likely to consist of owners, commoners, those with other interests in the common such as sporting rights, and possibly bodies that have statutory management functions on a common. In order to identify who is eligible to appoint a member of an association, the returning officer will draw up a list of all those eligible to participate. The association may decide that all those eligible to participate in the appointment of members to the governing body must—and the noble Baroness recognised this point—pay an annual subscription to the association. This is similar to the way some existing voluntary commons associations operate, where payment of a small annual subscription makes a person eligible to vote at general meetings of the association.
	The definition of "commoner" in this standard constitution is just for the purposes of that instrument, not for general application. The standard constitution only has any relevance to commoners or commons for which an association is established. The drafting does not mean that people with rights over other commons will cease to be commoners.
	Our amendment in response to the Delegated Powers and Regulatory Reform Committee is reflected in Clause 56(3). The noble Baroness, Lady Byford, expressed concerns about the draft establishment order and the desirability of depriving commoners of their rights if there is no association. That is not what the draft order does. It is not the case that commoners not in the association will not be commoners. I can reassure the noble Baroness that where no commons association is formed, nothing changes.
	I understand and agree that the words used in this clause may be confusing to people who are more familiar with other associations in which members are all those who have paid their dues or subscriptions, and the officers elected to manage the association. We will consider more carefully the terminology used for different elements of commons associations and provide any necessary amendments at third reading.
	I am sorry for going at such speed. I understand that there is an agreement, in the interests of the House, that we complete this part of the Bill by 7.30 pm. I will, of course, write to the noble Baroness, should I have failed to cover all the points to her satisfaction.

Baroness Byford: My Lords, I thank the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Farrington of Ribbleton: My Lords, I beg to move that consideration on Report be now adjourned.

Moved accordingly, and, on Question, Motion agreed to.

Compensation Bill [HL]

Baroness Ashton of Upholland: My Lords, on behalf of my noble and learned friend Lord Falconer of Thoroton, I beg to move that this Bill be now read a second time.
	This Bill is part of a much wider set of initiatives that is being taken forward across government. The Government are determined to tackle practices that stop normal activities taking place because people fear litigation, or have become risk-averse. We want to stop people from being encouraged to bring frivolous or speculative claims for compensation. The provisions in this Bill will help us do that. They will reassure people who are concerned about being sued that, if they adopt reasonable standards and procedures, they will not be found liable.
	The provisions also put in place the legislative framework needed to regulate claims farmers. These are companies whose marketing encourages consumers to make claims, for example in relation to a personal injury. They then either refer the claim to a solicitor for a fee or, in some instances, represent the consumer directly. It is estimated that there are some 400 of these companies operating in England and Wales.
	Part 1 of the Bill contains a provision on the law of negligence. As many noble Lords will know, in deciding a negligence claim, the court has to consider whether the defendant owed a duty of care to the claimant and, if so, whether the duty of care was breached and whether the claimant suffered loss or injury as a result. In considering the second of these—that is, whether the duty of care was breached—the court has to consider the standard of care and whether the defendant fell short of that standard. The ordinary standard of care in negligence cases is "reasonable care", and the question whether the defendant has met that is a question of fact for the court to decide, having regard to all the circumstances of the case.
	Clause 1 is concerned only with the approach of the court to assessing that question of fact and not with what the standard of care should be, nor whether the defendant owed a duty of care to the claimant. The clause states that one of the factors which the court can take into account in this process is whether a requirement that the defendant should have done a particular thing would prevent or obstruct a desirable activity from occurring or discourage people from providing that activity. This provision reflects guidance given by the higher courts during a considerable period and renewed in recent cases. It will ensure that not only all courts but also litigants and potential litigants are fully aware of this, and will provide reassurance to the many people and organisations, such as those in the voluntary sector, who are concerned about possible litigation.
	Part 2 sets out a scheme to regulate claims management services. Consumers are frequently exploited by certain claims management companies which do not offer an appropriate level of service. These companies, driven by financial incentives, cannot be allowed to continue misleading consumers. At present, claims management companies operate on a commercial basis. They are not required to comply with rules or a code of practice, and they are not subject to direct regulatory control. Many of the companies in the industry do not operate with appropriate transparency. Consumers are pressurised into signing agreements which they do not understand.
	The practices which the Government want to curb fall into three main areas: first, encouraging frivolous claims by raising false hopes about the compensation available through aggressive marketing techniques; secondly, misleading consumers about the options for funding their claim—in some cases, not letting them know that a free alternative exists, and in others, selling inappropriate additional services for their own gain, such as loans to fund insurance premiums, without clear advice on their purpose; and thirdly, providing poor-quality advice where claims managers act directly for consumers.
	Perhaps I can highlight a few examples. Citizens Advice frequently deals with problems created by claims farmers, many of which it mentions in its 2004 report, No Win, No Fee, No Chance. It uses the example of a woman in Berkshire who had an accident involving a trip and suffered cuts and bruises. Three years later, she was offered £500 compensation from the company concerned, but on the advice of a claims management company, she turned it down and was encouraged to borrow money to pursue the claim further. The client eventually won £1,200, but this was deducted from the loan, leaving a shortfall of £950, which was still accruing interest. Clearer information about the risks and the likelihood of additional costs that would be met from her own pocket might have led to a more equitable outcome. Consumers understandably take the "no win, no fee" slogan at face value, but they need to be aware of the liabilities they have when they buy insurance and enter into finance agreements to fund their claims.
	In Denbighshire, a taxi driver was encouraged to claim compensation for the trauma he suffered when he knocked down and killed an 18 year-old man. He was promised up to £15,000 in compensation, but finally received less than £60 in an out-of-court settlement.
	I must emphasise that the Government firmly believe that if a person has a genuine claim, it should proceed but, clearly, vulnerable people are being targeted and additional safeguards are needed. I want to see a major change in the quality of the service being given and the behaviour of some claims management companies: greater transparency, better quality control and a better service for consumers. Attempts have already been made to self-regulate the industry, but they have not been effective. Many claims management companies have failed to demonstrate the necessary commitment. So the time has come for the Government to take clear and firm action. Part 2 provides a proportionate and responsive framework for regulating the industry.
	Clause 2 defines claims management services and provides an order-making power to target regulation in specific areas. We anticipate that these areas will include: personal injury; mis-selling of financial products; employment; criminal injuries compensation; and housing disrepair. We also intend to catch the so-called "rehabilitation farmers" who have recently appeared.
	The legislation is flexible: it will allow new areas to be brought in to the regulatory net as problems arise, and it will allow areas to be removed from regulation if problems subside. This approach is consistent with the better regulation agenda that we are pursuing.
	Clause 3 allows for designation of a front-line body as regulator; creation of a new regulator or, if this is not feasible, direct regulation by the Secretary of State. It also sets out the criteria that need to be met before a body is designated. Our preference is to designate a front-line body as this would provide the most cost-effective and efficient solution and could provide effective regulation quickly to the benefit of consumers.
	Our prime concern is to safeguard consumer interests. To that end, those who wish to provide claims management services will be required to seek authorisation from the regulator and comply with rules and a code of practice which will govern their conduct. This will ensure that there are appropriate standards of client care, complaints handling, supervision and management.
	Consumers also need protection when things go wrong. The regulations that will be made under the schedule will create powers to impose a requirement for authorised persons to have professional indemnity insurance and a clear mechanism for dealing with consumer complaints. We also intend for there to be guidelines on the appropriate marketing of claims management services in the rules and codes of practice. We want to see an end to high-pressure selling and to people being approached randomly in the street.
	The regulations need to be proportionate. The legislation includes a broad definition to ensure that no loopholes exist, but where individuals are already subject to full regulation by another regulator, they do not need to be subject to further control. Clause 4 allows the Secretary of State to exempt members of specified bodies. For example, we intend to exempt members of the Law Society, the General Council of the Bar and the Institute of Legal Executives, where they are already regulated in the provision of claims management services by those bodies, and those who are subject to full regulation by the Financial Services Authority.
	We have no wish to impose unnecessary burdens on those who provide valuable services on a voluntary basis. Individuals who offer advice voluntarily are specifically excluded from the scope of this legislation, so, for example, individuals who provide advice to friends will not be caught, nor will those who work in a voluntary capacity for advice centres.
	Our prime concern is to tackle abuse by commercial claims management companies. There are some organisations which are not fully regulated, but which generally provide a high quality of service to consumers. So we also intend to exempt charitable organisations which provide claims advice and other statutory organisations such as ombudsmen. We also intend to exempt trade unions. We may attach conditions to exemptions, including a requirement to have regard to the regulator's code of practice. This will ensure a level playing field and ensure that everyone who is providing claims management services is meeting the same high quality standards.
	It is essential that this regulation can be enforced effectively. For those who are authorised, the legislation creates powers for the regulator to investigate breaches of the rules and codes of practice, to require the provision of documents, and to enter and search premises. The regulator will be able also to impose sanctions, including suspension or withdrawal of authorisation.
	Offences have been created for those who carry on providing claims management services regardless. Clauses 5, 6, and 9 set out the actions that the regulator can take if a person provides claims management services without being authorised. Clause 8 allows the regulator to take steps if he is obstructed in exercising his power to enforce legislation. The regulator will be able to apply for an injunction preventing unauthorised persons continuing to provide claims management services while he is investigating and gathering evidence to proceed with a prosecution. He will also have the power to enter and search. Regulations will include a requirement to obtain a warrant before the enter-and-search powers may be exercised. Anyone found guilty of the offence could face a term of up to two years' imprisonment or a fine or both.
	This framework provides flexibility to respond to a changing market. It is proportionate; it closes the regulatory gap; and it provides similar regulatory requirements for claims farmers and solicitors. I am grateful to the Delegated Powers and Regulatory Reform Committee for its important report on this Bill, and I thank it for its detailed consideration. I take the committee's concerns very seriously, and I will consider the points which it raised in advance of Grand Committee. I commit that I will deal with those concerns properly. We have undertaken targeted consultation of the proposals to regulate claims by management companies and there has been widespread support from key organisations and Members of your Lordships' House.
	The remit of the Secretary of State's consumer panel on legal services reform has been extended to advise on the development of the regulation. That panel was set up earlier this year to ensure our wider reforms of the legal services market are focused on the interests of consumers. It has among its members Which?, Citizens Advice, the National Consumer Council, the Federation of Small Businesses and the Equal Opportunities Commission. We have consulted them on the regulatory proposals and intend to seek their input on the development of the secondary legislation, and implementation, as this is taken forward.
	Welcoming the Bill, Citizens Advice said:
	"We are delighted that the Government has responded to demands to regulate the claims industry. Too often we have seen claims firms targeting people when they are at their lowest, and getting claimants to sign up to loan agreements they don't understand. Injury victims and others with legitimate claims deserve better than this".
	And the Federation of Small Businesses said:
	"Many of these companies give the impression that large pots of money in compensation are available for the slightest slip or trip and we welcome this response from Government".
	This legislation will put in place vital safeguards for consumers and curb practices that have been allowed to persist for too long. I have said enough about the proposals, and it is now time for your Lordships to consider them. I commend the Bill to the House.
	Moved, That the Bill be now read a second time.—(Baroness Ashton of Upholland.)

Lord Lucas: My Lords, with the leave of the House I shall speak briefly in the gap. I look forward to Committee. I support the Bill completely, but I want to ensure that the way in which Clause 1 is implemented and explained will give the people whom the Government aim to help the confidence that they need.
	Undertaking something in which you believe that there is the sort of risk that the Bill sets out to tackle is rather like standing on the edge of a river feeling thirsty but being worried that there might be a crocodile in it. Serious efforts need to be made to calm people's fears; it needs to be possible to show that this particular stretch of the river is safe and that what people are setting out to do is not attended with dangers. I have been the subject of lobbying by the Association of Personal Injury Lawyers—APIL—as I suspect other Members have. The examples that that body has produced seem to illustrate perfectly the problems rather than their proposed solution. It is terribly difficult for people to evaluate legal language when they are setting out to take kids on a trip or deciding whether to use a council-owned paddling pool. We simply cannot confront people with those sort of legalised decisions if we are to hope that the Bill will have the effect that Clause 1 sets out to achieve.
	I shall table a couple of amendments really just for the sake of being able to discuss these matters in detail and how the provisions will be practically implemented. I have a particular interest in exclusion notices; that is an important tool for someone setting out knowing that they are going to be safe when they do something. It should be possible for an authority, a council, a school or whatever body to exclude liability when the risks that the consumer is being asked to undertake and evaluate are risks that you would ordinarily expect such a consumer to be able to evaluate and take. When it is a question of whether to use a paddling pool in a park, for example, it seems reasonable to put a notice beside it saying that there is no supervision, that the water is changed only once a day, that using the pool carries those and other risks and that if you use the pool you do so at your own risk. That should be absolute; there should be no question but that such a reasonable notice gave the protection that the council wished it to have—otherwise providing these facilities becomes extremely difficult.
	Clearly there is a border that needs to be policed, but you need to know that the first few yards are safe. If you wade in the river and go out to far, there may be a crocodile in the deep water, but you need to know that you can go a reasonable distance. Excluding liability—and using words that can exclude liability—are a very important mechanism for an authority in dealing with parents or children. When a school acts in loco parentis, it should be absolutely clear that the school is not required to do anything that a reasonable parent would not be expected to do—that there is no added burden on these poor school teachers, who have to corral a number of disobedient kids, or that they should somehow be expected to be supermen and superwomen and go beyond what would ordinarily be expected if you sent your kid out on a day's expedition with a friend. To get to that position of rationality, when we all know what risks we are taking, accept them as part of our daily lives and take responsibility for them ourselves, rather than running to place those risks on other people, is an objective that I shall pursue in Committee.

Lord Brennan: My Lords, I take advantage of the gap for a few moments to make three short points. Will my noble friend the Minister please take into account on the code of practice, first, that claims representatives are essentially working on the basis of contingency fees; secondly, that professional people are not working on that basis; and, thirdly, that there should be control of the fee system by which the claims people operate? If people are unqualified, what will the regulator do to ensure that those who hire themselves out to provide a service provide a competent service? Lastly, will the regulator please ensure that there is a standard form of declaration of terms and inspection of how those people operate in the work that they say they do?

Lord Goodhart: My Lords, I look around with some care to make sure that the gap is over!
	This is undoubtedly a well meaning Bill, but being well meaning is not enough. Part 1—which is Clause 1—is at best unnecessary and may well lead to confusion and still more litigation. Part 2 unquestionably has a useful and desirable objective—the regulation of claims management companies. But the Government have not yet decided how they want to achieve that, and until they make up their mind on those issues, I believe that the Bill is premature. The lack of detail in the Bill has led to strong criticism from the Delegated Powers Committee, but the Bill is also to some extent premature because we have not yet had the report on the compensation culture from the Select Committee on Constitutional Affairs in the other place. It is important to see that report and the evidence that it contains, which I hope will be published during the course of the passage of this Bill through your Lordships' House.
	I start with Clause 1, which says:
	"A court considering a claim in negligence may, in determining whether the defendant should have taken particular steps to meet the standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might—
	(a) prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or
	(b) discourage persons from undertaking functions in connection with a desirable activity".
	My reaction to that is—what on earth does it mean? The Explanatory Notes say that Clause 1 merely reflects the existing law. But does it? Explanatory Notes can now be taken into account in deciding and helping to decide what a statute means, but they cannot override the wording of the statute.
	As the Minister said, in negligence cases the claimant has to prove, first, that the defendant owed him or her a duty of care and, secondly, that the defendant failed to meet that standard. The courts undoubtedly take that into account; they recognise that some sports carry an inherent risk of injury. For example, football carries an inherent risk of a broken leg or torn knee ligaments. Normally, however, unless there is some exceptional situation, such as something that goes far beyond a normal foul and is actually unacceptably violent behaviour, the sufferer, quite rightly, will have no course of action. Yet that does not exclude the duty of care.
	Let us look, for example, at another sport, if you could call it that: abseiling. That clearly carries an element of inherent risk, which in some cases cannot be foreseen. On the other hand, if the person in charge fails to inspect and check an obviously defective rope, or allows children to abseil without proper supervision and as a result someone suffers serious injury or is killed, the victim or the victim's family can get damages, and rightly so.
	Faced with Clause 1, there is a possibility that the court may say, "This section must be intended to have some effect. It must lower the duty of care if, for example, the expense of meeting the present standard may reduce access to a desirable activity". That could lead to all sorts of legal issues. What, for example, is a "desirable activity"? School trips are frequently talked about, but does a desirable activity include a visit by parents and their children to a leisure park? Does it include something like farming, or the production of new medicines? These are clearly desirable activities, but is the standard of care to be lowered? To what extent should the duty of care be relaxed below the normal standard? I hope that in Committee the Government will give a full explanation of why they think this clause is needed.
	In practice, the problem here lies with the question of insurance. For example, the cost of premiums for insuring school trips may be prohibitive. Could the Department for Education and Science arrange some mutual insurance scheme for schools, which would have lower costs than commercial insurance? There is also a serious problem with the costs of litigation, particularly with the conditional fee agreements—the CFAs—where the losing defendant has to pay not only the normal costs of the claimant, but a markup on top of that. It is now almost invariable that in small cases, unless the small claims process is used, the costs outweigh the damages, particularly where a successful CFA is used. We should probably look at issues such as some restrictions on the level of extra costs payable on CFA cases.
	This is not really aiming at the right target. That target is not so much the nature of the duty of care as why it is that litigation has become so expensive. I certainly would not think it right to see that anyone who has a genuine claim to damages should be denied that claim by lowering the existing duty of care. I recognise of course that the Government do not intend to do that, but I have fears that Clause 1 may achieve that.
	I turn to Part 2 of the Bill. I have no doubt about the need to regulate claims management companies, but we need to look carefully at the report of the Delegated Powers and Regulatory Reform Committee. I agree with them that too much here is left to regulations. Let us look at Clause 3, which is the power to set up a regulator. This is a very important provision, and too much here is left uncertain. Will the Secretary of State himself carry out the regulatory functions—which, under the Bill, he has the power to do? Will some existing body—no doubt a body involved in claims management—be appointed as regulator? This is what I think the Government mean by "a front-line body". Or will a new public body be set up? It surely ought to be possible to decide which course will be followed. As I said earlier, until the Government make up their mind on that issue, I believe this Bill is premature.
	In particular, Clause 7 and the Schedule to which it applies leave too much to regulations. It is essential that the Bill should not leave your Lordships' House until we get more detail. There are a number of points of detail in Part 2, which I will go into in Committee. I shall just mention the more important ones.
	In Clause 2, why is there a need for a waiver of accountability to the regulator as well as authorisation and exemption? "Waiver" and "exemption" seem to me to be very much the same thing. In Clause 3, why should the regulator be required to encourage competition as one of its duties? There would be an obvious conflict of interest, particularly if a body is concerned whose members include other companies involved in claims management. In any event, I should have thought the regulator's job is to ensure that there are adequate ethical standards and rules to punish infringements, and that it is the job of the OFT to ensure that there is competition. Is it envisaged that the regulator might be a body with links to the claims management business? As I said, that presents a conflict of interests.
	Why is Clause 5(2) included? This allows ignorance of the law as a defence. This is an unusual defence. Anyone providing claims management services for reward surely ought to know—and indeed almost certainly will know—that they are providing a regulated service. It does not seem at all necessary in that case to allow ignorance to be a defence.
	There is a power under Clause 6 for the regulator to bring criminal proceedings, but plainly that should only apply if the regulator is a public body. It would be wholly inappropriate for some non-governmental body to have that kind of power. The Delegated Powers and Regulatory Reform Committee says that the powers under Clause 7 and the Schedule are too wide even if the affirmative procedure is used, so we need more detail in the Schedule and the use of the affirmative resolution procedure, at least for the initial regulations.
	In paragraph 5 of the Schedule, I would like to know what is meant by "subjective criteria". Does this mean the regulator can refuse authorisation on grounds not supported by evidence? How can the regulator conduct hearings? It is now a principle in general that the body making the rules should not also be the body that enforces them. The DCA said in a letter to me that the powers in paragraph 11 apply only to investigation, not to sanctions. I have to say that I do not see anything in the Bill that makes that clear. Having one body to investigate claims and decide upon them and then refer them to another to impose a sanction would be a strange complexity. Is it appropriate for compensation to be provided? Why is Clause 12(1) not sufficient? Is it envisaged that authorised persons will handle clients' money? Will regulations cover that?
	There are a lot of problems regarding claims management—not with the principle, which we entirely endorse, but with the detail. I believe there is a lot of room here for improvement.

Lord Hunt of Wirral: My Lords, I declare my interest as a partner in the national law firm, Beachcroft Wansbroughs, in particular as chairman of the financial services division, and as chairman of the professional standards board of the Chartered Insurance Institute.
	The noble Baroness has clearly set out the Government's two prime objectives in introducing the Bill; first, bringing clarity to the law of negligence, and, secondly, the regulation of so-called "claims farmers". We on the Conservative Benches share and support both of those objectives. In that spirit of good will, I pay my own tribute to Ministers and in particular to the noble Baroness, Lady Ashton of Upholland, whose open and constructive approach thus far has been commendable. If we are to see really sustainable reform, the Bill must command widespread support, well beyond the confines of the Government and the Labour Party or even this place. In getting to grips with tort law reform, breadth of support is not a luxury, it is a necessity. This matter is, and must be, above party. The willingness to engage and listen on the part of the noble Baroness, Lady Ashton, makes that far easier to achieve.
	Having said that, the fact is that many people have been disappointed by what they see as the very limited scope of the Bill. Every great journey though begins with a single step, and I have high hopes both of this step and of the journey that will follow. Surely no one can seriously imagine that any single piece of legislation could of itself reverse all the problems that have sprung up. The noble and learned Lord, Lord Ackner, had hoped to participate in this debate. He would have enumerated the many serious problems that he always warned would follow from the abolition of civil legal aid and the introduction of conditional fee agreements. The Prime Minister put it very well when he said that across the board we need the values not of a "compensation culture" but those of a "common sense culture". The noble Baroness wisely reminded us in her opening remarks that the Bill should not be viewed in isolation, nor should the Government be judged by this Bill alone.
	We are promised action on a broad front—on rehabilitation, on guidance to schools, and possibly even additional primary legislation. In a totally non-partisan spirit, I think that is to be welcomed so long as there is a really joined-up approach right across government and there is genuine and quantifiable delivery across that broad front. I know that the noble Baroness believes this particular Bill to be not only small but also beautifully made. That is an enticing thought, but having read the Bill closely, I do not think it can yet be said quite to have attained perfection. The principles behind the Bill, and the intentions of Ministers in introducing it, seem to me wholly sound and worthy. As my noble friend Lord Lucas pointed out, as so often, however, the devil is in the detail. As I will endeavour to explain, I am not convinced that we are quite home and dry with the Bill as presently drafted.
	In terms of column inches, Clause 1 may seem to be the lesser part of the Bill, but its implications are far-reaching. I mention some points now to which I expect to return in Committee. First, I would be interested to explore with the Minister why the word "may" is used at line four of Clause 1—the noble Lord, Lord Goodhart, read out that clause—rather than "shall" or "must". That appears to make application of the clause by the courts discretionary rather than mandatory. Will the Minister confirm that that is the Government's intention and explain the reasoning behind it? There also needs to be clarity on the areas affected. Is Clause 1 intended to apply only to personal injury claims or will it extend to professional negligence and clinical negligence cases? What about breaches of statutory duty?
	My noble friend Lord Lucas mentioned the circumstances that gave rise to the decision of your Lordships' Appellate Committee in Tomlinson v Congleton Borough Council which concerned a pool into which John Tomlinson dived and where he sadly struck his head hard on the sandy bottom with very serious consequences. So far as breach of statutory duty is concerned, that case was all about the Occupiers' Liability Act. As I understand the position from Ministers, the intention behind Clause 1 is to codify the judgment in Tomlinson. Yet although there were a number of significant judgments, Tomlinson was all about breaches of statutory duty. My next comment deals with the point that my noble friend raised. One of the finest judgments I have read is that of the noble and learned Lord, Lord Scott of Foscote, who said:
	"Of course there is some risk of accidents arising out of the joie de vivre of the young. But that is no reason for imposing a grey and dull safety regime on everyone".
	Of course, we shall explore that matter further in Committee.
	Furthermore, when we speak of desirable activities, what do we mean? Is it only claims related to an educational or recreational activity deemed to be socially desirable that will be affected, or will road traffic accidents and accidents at work be affected too? In other words, what is the thinking behind this notion of desirable activities? Is there a legal source of any kind for the phrase "desirable activities", because if there is I have not found it? Are all those activities desirable that are not undesirable, and who is to decide? I put it to Ministers that that will require clarification and I may come forward with some suggestions on that in Committee.
	I now move on to the second part of the Bill. I agree with the noble Baroness that the activities of some claims farmers are a national disgrace and I am delighted that their activities are to be regulated. At their worst claims farmers deliberately and knowingly create utterly false and unrealistic expectations in the minds of some of the most vulnerable people in our society. They also do no favours at all to those who have genuine and legitimate claims, which can all too easily get lost if the system is clogged up. The unregulated activities of claims farmers in recent years have left a complicated and in many ways unhappy legacy for a great many people, not least those whom they were supposed to help.
	I pay tribute to the work done by those who have campaigned on the issue over the years, including notable contributions from leading insurance companies.
	I have a couple of points to make following the speech of the noble Lord, Lord Goodhart. I share his concern and the concern of the Delegated Powers and Regulatory Reform Committee about the powers that would be vested in the Secretary of State by the legislation and the volume of secondary legislation that it might well spawn. It raises both important constitutional issues and practical questions. The noble Lord, Lord Brennan, made a number of important points which we will have to consider in Committee.
	Unregulated claims farmers are a clear and present danger. I am worried about timescales. Is there any prospect of immediate action or will we have to wait months, or even years, before anything concrete is done? Furthermore, the activities of these claims farmers extend beyond the confines of the personal injury arena. It is important that this legislation should do so as well. Both as a parliamentarian and as a partner in a national law firm, I am only too aware of how disordered the loose ends have become.
	Indeed, it is far too simplistic to talk of different sides here. Many organisations that operate in what we loosely term the claims farming arena have welcomed these proposals. Knowing that the activities of the cowboys give them a bad name, they no longer wish to be tarred with the same brush. Yet even if we do manage to come to a consensus and get the legislation right—as I hope we shall—there is a tangled web out there that still needs much unravelling. So, in addition to preventing repetition or recurrence of past problems, we must not lose sight of the need to sort out the messy legacy of the chaos that has reigned up until now.
	In all of this, the role of the proposed new regulator will be critical. We need to hear from the Minister on the tricky question of who or what the regulator may turn out to be. The regulator must not only be independent; he or she must also be seen to be independent. I suggest that there are three "I"s which might be applied: independence, impartiality and integrity.
	I am also quite disappointed that the Bill contains no regulations dealing with advertising standards, or the transparency of charges and commissions received for the services being regulated, as was pointed out by the noble Lord, Lord Brennan. After all, it is principally these that have driven the behaviour that has, in turn, generated so much satellite litigation. We have a good opportunity ahead of us to refine the Bill. I hope that everyone will respond positively to that challenge. Our consideration in Grand Committee will require everyone to adopt a thoughtful and, perhaps, less confrontational attitude than sometimes occurs, as everyone in this country has a vested interest in our work on this Bill.
	The process of parliamentary scrutiny and amendment that lies ahead must not result in this legislation emerging as an emasculated, lowest common denominator Act of Parliament. The Compensation Bill must become a crucial part of a robust, sustainable answer to the challenges of our time. We therefore have some work to do.
	Other elements of this revolution may then follow in due course. Ministers will not be surprised to hear that I shall take particular interest in any consultations or proposals relating to rehabilitation and occupational health. Earlier this month the noble Lord, Lord Warner, intimated that health Ministers are still seriously considering reform to Section 2(4) of the Law Reform (Personal Injuries) Act 1948. I hope that that will come to pass and that, in conjunction with the department represented by the noble Baroness, we will have some fundamental reform which improves our rehabilitation system.
	To conclude; exactly a year ago, both the Norwich Union and Citizens Advice published major reports which set out a series of observations and proposals that are well worth revisiting. Although the Minister mentioned the Citizens Advice report, I think that the Government have not really responded substantively to the contents of either report. The Norwich Union report, A Modern Compensation System: Moving from Concept to Reality, advocated a number of measures, including raising the small claims limit for injury claims from £1,000 to £5,000. It also advocated a general streamlining of the system, with an important emphasis on putting claimants first and on "mending the person". I hope that we shall see serious consideration of all such points.
	As I said earlier, this must be above and beyond party. For this Bill, the Grand Committee system provides us with an ideal opportunity to achieve precisely that. We on these Benches agree to play our part, constructively and positively, in this important and ongoing process.

Baroness Ashton of Upholland: My Lords, I am extremely grateful to the noble Lords, Lord Goodhart and Lord Hunt, for the time that they have given me already in discussing these issues, and I thank the noble Lord, Lord Hunt, for attending at least in part the conference that we had on the issues. I know that the noble Lord had to come back to do a pensions debate in your Lordships' House. I am also grateful to my noble friend Lord Brennan and the noble Lord, Lord Lucas, for speaking in the gap. I looked slightly startled because I did not know that either noble Lord was going to speak, but I am grateful that they did, particularly as the noble and learned Lord, Lord Ackner, was not able to be with us this evening. I am sure that the noble and learned Lord will engage with us in Committee, and I will of course ensure that I discuss the issues with him.
	This is a timely Bill, not a premature one—the noble Lord, Lord Goodhart, will not be surprised to hear me say that. In a sense, it was reflected in the comments of the noble Lords, Lord Hunt and Lord Lucas, in particular about the regulation of claims farmers. The noble Lord, Lord Lucas, also spoke about the issues that concern organisations trying to provide opportunities, particularly for our young people.
	It is important to stress what I said in my opening remarks about it being part of a wider set of objectives for the Government and a wider piece of work. I chair a ministerial working group of nine Ministers representing nine departments, including the Department for Education and Skills, the Department of Health and the Office of the Deputy Prime Minister, which is concerned with the role of local government. All of us are committed to addressing the different aspects of the issues. We meet regularly to ensure that our work is joined-up and to address the different issues that affect different parts of our society.
	We also have a number of stakeholder groups. I place on record my sincere thanks to those from the consumer organisations and from the industry who have willingly given of their time to help us to deal with some of the important issues—not least rehabilitation, as the noble Lord, Lord Hunt of Wirral, knows. My noble friend Lord Hunt of Kings Heath was with me for the opening of the debate to demonstrate the commitment from the Department for Work and Pensions, where he and I jointly chair the work on rehabilitation, and I agree with the noble Lord, Lord Hunt, that it is an important part of the work.
	I say to the noble Lord, Lord Goodhart, that the Select Committee is aware that the Bill is in the House. I discussed it with the chairman of the committee, the right honourable Alan Beith, who was more than happy that we should continue with the passage of the Bill. I believe that I will appear before the committee in January, but the Select Committee has no difficulty with us continuing with the Bill, and, as the noble Lord will accept, I have ensured that we are not in any way seen to be behaving inappropriately by the Select Committee. I would not dare do so with the right honourable gentleman as chairman.
	I have also indicated that I take fully on board the report of the Delegated Powers and Regulatory Reform Committee. It is always my desire to ensure that we deal with the issues, and I commit that we will address appropriately all the points raised by the Delegated Powers and Regulatory Reform Committee. I will come on to talk about Part 2 in more detail. We sought to provide flexibility in the Bill to enable us to move swiftly to address questions. The noble Lord, Lord Hunt, made a good point about ensuring that we did not delay but moved as quickly as we could.
	Noble Lords have indicated that Clause 1 is an important part of the Bill, and I already sense differing views on it. I begin where the noble Lord, Lord Lucas, took us, which is the issues that concern the organisations trying to provide opportunities particularly, although not exclusively, for our young people. We looked at research by Volunteering England, which found that increased concern about the risk of litigation was having an impact on the number and roles of volunteers. One in five organisations in the research reported that people had stopped volunteering for them because of fears about risk and liability, with more than a quarter of them saying that volunteers had been deterred from volunteering by concern over those issues. Those fears may be out of proportion and based on inaccurate perceptions, but they are very real. We sought to recognise those issues in Clause 1 and to provide much-needed reassurance—particularly though not exclusively to the voluntary sector—to those who are concerned about possible litigation. The law takes the social value of activities into account, and people will not be found liable if they adopt reasonable standards and procedures.
	The noble Lord, Lord Goodhart, is right when he says that it is about reflecting the existing law, and that is the guidance given by the higher courts. We have tried to balance on the one hand those who feel strongly that we need to put something in legislation that makes it clear that good activities being undertaken by organisations should not be penalised and that we recognise what goes on in those activities while on the other hand recognising that we are not trying to hamper what the courts do very well—dealing with those issues properly. We think that we have struck the right balance. I have said that it is a beautifully formed Bill—I have no doubt that I will come to regret those words. However, I feel strongly, as we go through Committee, that we have tried to reflect the balance and we have worked hard with Clause 1 to put that balance in. It is not a clause that will be easily amendable, nor indeed one that I can do much with. I will seek to explain—in better detail than I can at Second Reading—how we got to where we got to and why we think that this will work. We hope that it will discourage the bringing of claims based on the proposition that reasonable care involves all steps required to prevent accidents in any conceivable circumstances, regardless of the effect of requiring those steps. We hope that it will set out a balance that says that there are things that one wishes to do and that the courts may take those into account.
	I agree as well with the concern of the noble Lord, Lord Goodhart, that, although in the Bill we seek to deal with the issue of claims farmers, a big part of the work in government is to ensure that those with justifiable claims are able to get those claims as quickly and easily as possible. A big piece of work under way considers how we look at the claims process and whether we can streamline it and deal with it better, to enable people who have claims to get those claims as swiftly as possible.
	I hope that I dealt with some of the issues that the noble lord, Lord Goodhart, raised in our discussions this month in my letter to him. I hope that he will forgive me if I do not go into too much detail on the issues; in a sense, he was marking my card for Committee. I will make sure, though, that noble Lords who have spoken in this debate will have a copy of the letter that I wrote to the noble Lord. I covered quite a number—though I am sure not all—of those issues.

Lord Mayhew of Twysden: My Lords, as the noble Baroness is leaving Part 1, I wonder if she would undertake to give further consideration to whether the concept of a desirable activity is really a justiciable concept at all, in the light of the questions raised, not least by my noble friend Lord Hunt of Wirral. On further reflection, would it not be better to leave the law in the unspecified but general state of requiring reasonable care in all circumstances?

Baroness Ashton of Upholland: My Lords, I have not in fact left Part 1, and I now turn to the detail of the questions that the noble Lord, Lord Hunt of Wirral, raised. As the noble and learned Lord, Lord Mayhew, rightly says, I had not addressed those questions and, of course, I should at this stage. If I might, I will deal with those, and I hope that what I say will address the points that he raised.
	The noble Lord began by asking whether we say "may" rather than "shall" or "must". I have a sense of déjà vu, as I fear that I have discussed the question of "may" and "shall" in a number of different pieces of legislation in your Lordships' House. We have sought to recognise that the circumstances may vary from case to case. In our view, it would not be appropriate—we are back to the classic "may" or "shall" argument—to say that it should be taken into account in all cases. I hope though that the courts would consider in every case whether it is relevant to look at that factor. In what we have just done in legislation, we believe that it would be inappropriate to say that the courts had to take it into account.
	The noble Lord asked me about professional negligence and clinical negligence cases. As the noble Lord, Lord Hunt, rightly says, the provision potentially does extend to all claims in negligence—as indeed does the current approach of the courts, which this reflects. The courts have considered it relevant in the context of professional negligence only in limited circumstances. We think nothing in the clause requires it to be taken into account more widely than it currently is. Therefore, in a sense, we are staying with the status quo.
	The noble Lord also asked me about breaches of statutory duty and discussed the famous Tomlinson case, which I have come to know a lot about. The clause relates to claims in negligence at common law and therefore does not apply to any statutory duty. The noble Lord asked me, too, about issues relating to educational recreational activity and accidents at work or road traffic accidents. Again, the provisions are not restricted to particular types of activity—it will be a matter for the courts, as now, to decide whether and to what extent it is relevant in the particular circumstances of an individual case. We have tried all through our work on Clause 1 to ensure we retain the flexibility and ability of the courts to develop the common law as appropriate. I think that we have captured that well, but I look forward to our Committee discussions on that.
	I turn to the point the noble and learned Lord, Lord Mayhew, made, which is the source of the words "desirable activity". Noble Lords will appreciate that we spent considerable time looking at the words that we selected. In "desirable activity", we think that we have embodied a concept and approach that the courts have not consistently described in one term. The concept is the established one of taking the wider social value of activities into account, and the courts are of course very familiar with it. In a sense, that goes back to what the noble Lord, Lord Lucas, said about the kind of activities. Although it will be for the courts to interpret, we think that we have captured in that term the sort of activities that we wish to capture in Clause 1. It reflects existing law. The courts already can and do take such matters into account. In our discussions throughout government and much wider, we have provided a provision that courts will be able to apply without undue difficulty, reflecting the state of the law as it is. I hope that the noble and learned Lord, Lord Mayhew, and others will reflect on that.

Lord Goodhart: My Lords, this is simply a question. Does the Minister see any difference in what is a desirable activity as between activities carried out on a non-profit-making basis, such as school trips, and those of a leisure facility that are intended to be profit-making under private ownership?

Baroness Ashton of Upholland: My Lords, it would not be appropriate to determine what is "desirable" on the basis of money, but the courts have a long track record in determining what should happen. For example, my daughter is a Girl Guide. We pay money for her to undertake activities—sailing and so on—with the Girl Guides. It is true that it does not make a profit, but presumably the centre to which it pays the money may do so. If my daughter were on a Guides' activity and there were an issue, I would expect the courts to consider the activity, not the money, if I can put it that way—but that is not for me, fortunately. As the noble Lord knows well, I am not a lawyer, and it rather shows on occasion. The courts are well able to determine what they are looking for in "desirable activity". As I say, the term captures the current law, giving the courts the flexibility to consider the issues and will enable them to interpret what is right and proper. It is not for us to do that.
	I am sure that we will return to the issue and debate it in Committee, but I hope that noble Lords will see what we have sought to do. Whether they agree that we have achieved it will be for our discussions. We have done in it in a way that we think does not hamper the courts but recognises that organisations want us to do something about their real concerns. That returns us to the points made by the noble Lord, Lord Lucas, and the reflections from a number of organisations with which I have had the good fortune to meet, including the all-party group under the chairmanship of Julian Brazier, Lembit Öpik and Derek Wyatt, who have discussed the issues with me. I shall now turn to Part 2, as I have dealt with all the issues on Part 1.
	I indicated to the noble Lord, Lord Goodhart, that we were not being premature. I recognise the role of delegated powers, but it is important that we provide some flexibility in the legislation. I shall briefly go through the points raised. The noble Lord, Lord Brennan, asked about unqualified persons providing competent services. We anticipate that, when we grant authorisation to provide claims management services, the regulator must consider criteria relating to competence or suitability. That will be included in the regulations under Clause 7. The noble Lord, Lord Hunt, raised a number of issues. The power of the Secretary of State to regulate is an interim measure, and we expect it to be implemented only if the designated body fails to deliver the regulation of the sector.
	We envisage that the legal services board, which will be established as part of the wider legal services reforms that have been indicated in our White Paper, will replace the Secretary of State as the oversight regulator. We plan to bring forward the legal services Bill for pre-legislative scrutiny later this Session, so we hope that noble Lords will see how everything will fit together. But we want to get on with it and we envisage that regulation will commence towards the end of 2006.
	Clause 2(2)(e) will allow the Secretary of State to bring at-risk sectors into the regulatory net. We envisage that the first order will go beyond the confines of personal injury and include the areas in the short list that I mentioned in my opening remarks. We want to be flexible about the regulator—the noble Lord, Lord Goodhart, rightly raised that issue—and we have commissioned an independent expert to help us with that. I will advise noble Lords on the findings well before the Bill leaves your Lordships' House. Designating the Claims Standards Council as the regulator may be the quickest and most effective method, but the final decision on what we do will be informed by that expert advice. I am advised that the report will be with me before Christmas, and as soon as I am able to give your Lordships information about that, I will do so. We have tried to ensure that we have the flexibility to make sense for the future and to get on with the job.
	The rules under the code of practice will also ensure that providers adhere to high standards, and we want to ensure that those apply across all the marketing activities. The rules will make it clear that advertising must not be misleading or inaccurate. With regard to the point raised my noble friend Lord Brennan, the charges or fees for providing claims management services must be made clear to the claimant at the outset and they must be proportionate to the amount of work involved.
	At present, we are carrying out research for the Advertising Standards Authority to enable us to consider whether its regulation is appropriate. The research is jointly commissioned and funded. I have watched all the TV advertisements available on the issue and have discussed the matter with the industry. Most of the industry works extremely well and is highly reputable, but we want to ensure that television and other advertising is considered appropriately. As noble Lords will be aware, we are also looking at advertising in hospitals, where we need to consider the benefits to patients of knowing how to make a claim and what is being suggested to people who may be vulnerable. We are alive to that issue, but we do not believe that it is a matter for the legislation at this point.
	I end as I began. I am grateful for the interest shown by noble Lords, and I very much look forward to the Committee stage of the Bill. I hope that noble Lords will understand our ambitions for Part 1 and that they will see Part 2 as a necessary step towards protecting consumers. Noble Lords have accepted that we will take on board the issues raised by the Delegated Powers and Regulatory Reform Committee, and therefore I hope that they will feel that the Bill is worthy of support. I also hope that they will feel that, in order to get it on to the statute book and get on with it, it is worthy of a speedy passage through the House.
	On Question, Bill read a second time, and committed to a Grand Committee.

House adjourned at twenty-seven minutes before nine o'clock.

Monday, 28 November 2005. Grand Committee

Grand Committee